Hornsby Shire Council v Surace

Introduction 1 HIS HONOUR: The defendant was charged with carrying out development which required development consent pursuant to s 76A(1) of Environmental Planning and Assessment Act 1979 (NSW) by demolishing and damaging a heritage item being a garden listed under Schedule D of the Hornsby Shire Local Environmental Plan 1994 without the consent of the Council. 2 The defendant is the owner of the relevant land which is lots 19 and 20 in DP 6107 known as 2 Waratah Road, Berowra. The land has on it a conventional dwelling house situated within a curtilage of about 2,700 square metres. The site is located one lot from the Pacific Highway. Between the highway and the land is a service station. 3 The nature of the offence described in the summons was as follows: "The demolishing and damaging of part of the garden in and on the land where the garden on the land is a heritage item listed under Schedule D of the HSLEP [Hornsby Shire Local Environmental Plan], without the prior written consent of the Prosecutor, contrary to section 76A(1) of the EPA Act and clause 18(1)(a) of the HSLEP [Hornsby Shire Local Environmental Plan]." 4 The Hornsby Shire Local Environmental Plan (LEP) applies to the shire and contains within it controls with respect to heritage matters. 5 Of relevance to the present matter are subsections (1), (2) and (3) of cl 18. Clause 18(1) requires consent to be obtained from the Hornsby Shire Council ("Council") before development that affects a place listed as a heritage item in Schedule D is carried out. Schedule D contains a lengthy list of many properties which are either wholly or in part identified as a heritage item. An examination of the Schedule indicates that the description given to many items is not particular and it is not difficult to foresee that in the context of an alleged breach of the law, many disputes will arise as to whether or not a particular element of a site is within the description of the heritage item. As I will later explain, that difficulty does not ultimately affect the present matter. However, the consideration of the attributes of the present site by the consultants engaged to assist in relation to heritage matters in the preparation of the local environmental plan reveals a considerable difference between the item identified by the consultant and the item ultimately described in Schedule D to the LEP. 6 With respect to the property 2 Waratah Road, the heritage items are identified as ""The Laurels" and garden." 7 There is no significant dispute in relation to the work which the defendant undertook on his property. The rear yard of the property was cleared using a bobcat. Facilities for housing chickens, trees (some modest) and shrubs were also removed. A fish pond was removed and lawn areas were taken up. 8 I am satisfied beyond any doubt that the garden was damaged and/or demolished by these works. 9 Senior counsel appearing for the defendant conceded that physical work was undertaken which had the effect of damaging various trees, shrubs and other items within the garden. However, it was submitted that the prosecution must fail because the defendant carried out the work with an honest and reasonable belief that the rear yard area of the property was not the subject of cl 18 of the LEP and consent was not required. 10 It is submitted that what was referred to as a Proudman v Daymon defence is available (see Proudman v Daymon (1941) 67 CLR 536). Furthermore, it was submitted that the proper understanding of the LEP had the effect that the work which was undertaken was not proscribed. 11 In order to understand the defences it is necessary to briefly relate the relevant facts. Before it was purchased by the defendant, the property was owned by Mrs Glennis Ann Sinclair-Irvine and her husband. They purchased the property in 1994. Mrs Sinclair-Irvine gave evidence in which she indicated that when the property was purchased, the garden area was not in good condition and a great deal of work was needed to bring it to a standard which she believed appropriate. She gave evidence that she and her husband undertook the re-laying of paths, the planting of shrubs and the removal of weeds, particularly privet, and that they carried out significant work to improve the gardens. She also kept chickens, ducks and other animals on the property. Although she did not accept that the rear of the property resembled a farm, she agreed that some people may have described it in that way during her ownership of the property. 12 Photographs of the garden have been tendered and it is plain that Mrs Sinclair-Irvine and her husband maintained it in a very good condition. It undoubtedly provided an attractive amenity for the occupants of the dwelling. 13 At the front of the house and on the front boundary of the property there is a stand of camphor laurel trees which were planted many years ago. Although now considered in many locations to be a weed, the trees have grown into a significant stand which are no doubt a feature of the local landscape. They are in good health. 14 The evidence in this matter discloses that the work that was done was carried out at the rear of the dwelling and nothing was done to effect the camphor laurel trees. 15 Mrs Sinclair-Irvine and her husband decided to sell their property and in August 2002 engaged a real estate agent. An advertising brochure was prepared which has been tendered in evidence. It includes photographs of both inside the house and the garden. 16 The property was described at this time by Mrs Sinclair-Irvine as having on the eastern side of the garden a large lawn area which included the remnants of a grass tennis court fringed with various trees, including three hibiscus, two macadamia, two cotoneaster, four persimmon, a camellia, an azalea, a wygelia, a bougainvillea and a japonica, as well as miscellaneous shrubs, bulbs and other cottage plants. 17 Mrs Sinclair-Irvine indicated that it was she and her husband who developed the cottage gardens on the property. 18 The western side of the garden behind the garage was another lawn area with two plum trees, a jacaranda, a crab apple, honeysuckle, bottlebrush, three citrus trees and a beehive. 19 The garden to the rear of the house comprised a large area of lawn and pathways meandering through cottage plants including native daphne and rose bushes. 20 The defendant became interested in the property and, appreciating the size of the allotment, made enquiry of the Council as to the available development potential of the property. 21 At the time, the Council employed Ms Lisa Trueman an architect, as its heritage architect. She gave evidence and was cross-examined. She says that in or around December 2002 she had a telephone conversation with a person who stated that he was, and who she knows to be, Ricky Surace who is the defendant in these proceedings. She says that he stated that he was making enquiries about the property at 2 Waratah Road, which he was interested in purchasing. Ms Trueman says that Mr Surace said: "I am enquiring about the heritage listing of the property 2 Waratah Road, Berowra. Is it just the front facade of the house that is protected? What does heritage listing mean?" 22 Ms Trueman says she replied: "The heritage listing relates to the entire property. The Heritage Study Inventory Sheet for the property specifically mentions the house and garden and the row of camphor laurel trees located at the street boundary". 23 She says that Mr Surace said: "How would this affect the development or subdivision potential of the property? Can I subdivide? Can I demolish the garage?" 24 Ms Trueman says that she replied: "The house can not be demolished, although sympathetic alterations and additions could be considered. If you plan to subdivide and develop at the rear, any significant outbuildings and garden elements that contribute to the property's significance need to be retained, as well as the stand of Camphor Laurel trees. A full assessment of the impact of any proposal on the heritage significance of the property would be required to be undertaken to determine the significant parts of the property and to demonstrate if subdivision would be appropriate or possible. A suitable curtilage would also need to be retained around the house to ensure that its setting was not compromised." 25 She says that on 30 January 2003 she received a further telephone call from Mr Surace. He said words to the effect: "I have now purchased and moved into the property at No 2 Waratah Road. The place is infested with rats. A pest inspector has been around today and discovered that the rats are coming from a chicken enclosure in the rear yard of the property. The rats are also in the house and the house is in an unliveable condition. What can I do to get rid of the rats? Can I remove the chicken enclosure?" 26 Ms Trueman says that she replied: "You can remove the chicken enclosure in order to get rid of the rat infestation, as it is a small structure and not a significant part of the garden." 27 Mr Surace apparently responded: "The pest inspector says that I should also clear some shrubs around the chicken enclosure where there are also rats. Also, the rats are in some of the trees, is it possible to remove them too?" 28 She said: "You can clear some small shrubs directly around the chicken enclosure in order to alleviate the problem. But you cannot remove any trees on a heritage listed property without formal consent of Council. You will need to make an application to have any trees removed." 29 Mr Surace said: "The rats are also inside the house, and the house is in such poor condition that it is unliveable. There are also problems with the sewerage and there appears to be some unauthorised internal modifications to the house. In light of this, is it possible to demolish the house?" 30 Ms Trueman says that she replied: "As I have told you, the house is a listed heritage item so it is not able to be demolished. You can eradicate the rat infestation and repair the sewer problem. I am unaware of the interior modifications but we can investigate this further if you wish." 31 Mr Surace said: "What else can I do? Can Council give me any help about the rat infestation and what I can do to get rid of them?" 32 I said: "I will pursue this with the relevant Council officers and call you back." 33 She then terminated the call. Ms Trueman gave evidence that during the conversation in December 2002 she accessed the consultant's material upon which the heritage listing of the property was based. That material is in evidence. It reveals that two different persons undertook the study which has resulted in the listing to which I have earlier referred. One person examined the house, the other the garden. Each person has prepared a two sheet summary of their observations and findings. 34 In relation to the house, which is referred to in the document by its present name, "The Laurels", the significance is said to be: "Good example of an Inter-War house of mixed weatherboard and asbestos cement construction. Original detail of interest, including windows and timber posts. Excellent garden. Local significance." 35 With respect to the garden, it is identified by the name "Garden" and its significance is expressed in the following terms: "Impressive bank of Camphorlaurels, characteristic of c1920's period and notable element in local streetscape. Of local significance." 36 On the second sheet under the heading "Description" the following is said: "Row of mature Camphorlaurels, to weatherboard house from about c1925 up to 14 metres high (with trunk diameters to 1.2 metres), eight trees." 37 It can be observed that nowhere in these documents is the garden beyond the camphor laurels described. It is said in relation to the significance of the house that it has an excellent garden, but the document does not suggest that, beyond the camphor laurels, there is anything of particular significance in the garden itself. 38 The significance of these documents is that they were referred to by Ms Trueman when discussing the matter with the defendant. Ms Trueman also indicated that, as was her practice, upon request from an estate agent the same material was faxed in order to assist the agent to understand the consequences of the heritage listing. 39 These matters are important because the defendant gave evidence that his recollection of the conversation which he had with Ms Trueman differed in significant respects in relation to whether or not he was informed that the whole of the garden of the property, or only the row of camphor laurel trees at the front of the property, was protected by the heritage listing. 40 The defendant gave evidence, and I accept him, that when he made enquiry of the estate agent he was informed that the heritage listing related to the house and the camphor laurel trees at the front but did not extend to the garden at the rear. Having regard to the fact that the agent was forwarded the written material from the consultants to which I referred, I accept this evidence from the defendant. 41 The defendant also said that when he spoke with Ms Trueman on the telephone he was informed that it was the house and front camphor laurels which were protected by the heritage listing. He said she never told him that the listing applied to the whole garden. He says that when he telephoned in late January, he told Ms Trueman that he was wanting to do clearing work and asked if he could clear shrubs and the chicken pens because he was concerned about spiders, rats and snakes. He says that Ms Trueman indicated to him that he could clear the chicken pen and remove a tree in which the rats might be nesting. He says that he was told that he could pull down any tree providing it was less than about five metres in height. He says that he was not told that the heritage listing was an impediment to his removing vegetation from the rear garden of the property. 42 The defendant says that if he had not understood that he could clear the rear garden of the property he would not have bought it. Indeed, he says he would not have bought it if he had understood the heritage listing applied to the whole property. 43 The defendant says that at the time he purchased the property there was an accumulation of rubbish at the rear, which included old washing machines, the chicken coop, various pavers, pallets which contained pot plants and other matter. He maintained that in order to make the property safe for his wife and children, he wanted to clean it up and ensure that there was no area where rats, spiders or snakes could be harboured. He says that he observed a snake on the property after taking possession. 44 The significant issue in relation to the account of the conversation between Ms Trueman and the defendant is whether or not Ms Trueman told the defendant that the heritage listing related to the entire property and that he needed consent to remove any matter from the garden at the rear. 45 Ms Trueman became aware that there may be an issue in relation to her conversations with the defendant upon her return from holidays on 11 February 2003. On that day she made a file note recording her recollections of the conversation which occurred in January 2003, which also gives an account of her earlier conversation with the defendant. In that file note she says: "Mr Surace has just purchased this property. In a conversation prior to his purchase of the property, I had explained that the heritage listing related to the house and camphor laurel trees. He had queried development/subdivision potential of the property - I had explained that the house and tree must be retained, that an adequate curtilage would be required to be retained to ensure the setting of the house was not compromised and that any significant outbuildings or garden elements that contribute to the setting of the house would need to be retained." 46 It is plain from this file note that Ms Trueman did not inform Mr Surace in the earlier conversation that the heritage listing related to the whole of the property. In her own words she says that she told the defendant that "The heritage listing related to the house and camphor laurel trees." No doubt these words could be understood as meaning that the reason why a heritage listing had been made in relation to this property was because of the quality of the house and camphor laurel trees, but that the order applied to the whole property. However, this is not suggested in the note and I accept the defendant when he says that he was not informed by Ms Trueman in the December conversation that the heritage listing related to the whole property. 47 She says in the file note of the conversation in late January: "Mr Surace claimed that the property was infested with rats originating from a chook shed/enclosure. He asked if it was possible to demolish the house as it was unliveable. I stated this was not possible but that he could remove the chook shed to remove the source of the rats. He also said that rats were in the surrounding scrub and trees. I indicated that I would investigate this further with Council officers in relation to the removal of the scrub." 48 From the file note it is plain that in that January conversation Ms Trueman indicated to the defendant that he could, without obtaining any further consent or permission, remove at least the chook shed and the source of the rats from the rear yard of the property. 49 There is no suggestion in the file note that during that conversation Ms Trueman said that the heritage listing applied to the whole property. Ms Trueman's file note is confirmed by the evidence which she gave on affidavit which I have already related. She accepts that she told the defendant he could remove the chicken enclosure, indicating that it was not a significant part of the garden, and that she also indicated that small shrubs around the chicken enclosure could be removed. She says that she also indicated to the defendant that he could not remove any trees on a heritage listed property without formal consent. 50 An analysis of this evidence indicates that the significant difference between the evidence of the defendant and Ms Trueman is whether or not Ms Trueman told the defendant in any conversation, but most particularly in the conversation in December 2002, that the heritage listing applied to the whole property. 51 The defendant, who gave evidence and was cross-examined, said that he was never told that the heritage listing applied to the whole property either by the estate agent or by Ms Trueman. 52 There are some aspects of the conversations which occurred between Ms Trueman and Mr Surace which remain unclear. However, I accept the defendant when he says that he was not told by Ms Trueman that the heritage listing applied to the whole property. 53 Having regard to the fact that Ms Trueman indicated that she drew upon the consultant's written material in the conversation which she had with the defendant, I believe it unlikely that she indicated to him that the heritage listing related to the entire property. She apparently went to this material in order to inform herself, and be in a position to inform the defendant, as to the elements protected by the LEP. In those circumstances, I accept the defendant when he says he was not told that the heritage listing related to the entire property. 54 With respect to other aspects of the conversation between Ms Trueman and the defendant there are greater difficulties. It is plain that the defendant told Ms Trueman he was going to remove some facilities from the rear yard of the property and she indicated to him that he would be able to do that without obtaining consent. However, she denies that the defendant said to her that he wished to remove trees and that she indicated that trees up to five metres in height could be removed. 55 In relation to the elements of the conversation occurring in late January which relate to the defendant's disclosure of the extent of the clearing he proposed to undertake, I am unable to determine the precise elements of that discussion. However, I am satisfied that the defendant did not inform Ms Trueman of the full extent of the work which was ultimately undertaken. 56 I am satisfied that if Ms Trueman had been informed that the rear yard of the property was effectively to be cleared of almost all vegetation but for some larger trees, the lawn removed and the gardens taken away, she would have responded in a different manner to the way in which she did. 57 As I have indicated, the heritage item in Schedule D relating to the subject property is described as "The Laurels and garden." No greater definition is provided. Because the house has apparently historically carried the name "The Laurels" it is claimed that the house is included within the heritage item. 58 In relation to some other heritage items within the Schedule, reference is made to particular trees or other elements within the landscape which are heritage items. Sometimes a house is referred to without reference to its garden. Sometimes, rather than reference being made to a garden, reference is made to the grounds relating to a particular building. In the present case, I am satisfied that, having regard to the physical attributes of this property, being a house surrounded by a large area of integrated landscaping, that large area is properly described as the garden. This includes not only the camphor laurel trees but all other elements of the integrated landscape. Accordingly, I am satisfied that the defendant has damaged a heritage item as he has been charged. 59 The basis for a Proudman v Daymon defence is that the defendant, although committing a breach of the law, has done so under a mistaken belief that was honestly and reasonably held in relation to an essential matter of fact. It is not available in relation to a mistaken belief as to the law or as to a matter referred to as a mixed question of fact and law. 60 I should have indicated that the prosecutor and the defendant agreed that the present offence is one of strict liability and, accordingly, if the elements of it exist, a Proudman v Daymon defence is available. The question between the parties is whether or not the mistake which was made is a mistake of fact or one of law. 61 The question of whether or not a particular matter should be classified as a matter of fact or law has proved difficult in many cases. 62 In Palmer v Ostrowski (2002) 26 WAR 289, the Full Court of the Supreme Court of Western Australia upheld, by majority, an appeal by a fisherman against his conviction for fishing for rock lobsters in a closed zone. The circumstances were that the fisherman had been to the relevant authority and sought copies of the regulations which applied to fishing offshore. He was given various documents which did not include any document relating to the area in which the fisherman set his pots. He had set them in this location in the honest belief that the regulation did not extend to the area. The mistake which was alleged was that the material provided to him by the relevant officer was complete whereas in fact it was incomplete. It was accepted by the Chief Justice of Western Australia that the error constituted a mistake of fact. Steytler J dissented and in his reasons drew attention to the fact that the distinction between mistake of fact and one of law is not easily drawn. The distinction his Honour said "raises many questions." Troublesome problems in relation to what is meant by ignorance of the law and whether private rights are included, present these difficulties. His Honour said there are particular difficulties in cases in which there are mixed questions of law and fact. 63 His Honour drew attention to the speech of Lord Simonds in Howell v Falmouth Boat Construction Co Ltd [1951] AC 837, where his Lordship said (at AC 845): "The illegality of an act is the same whether or not the actor has been mislead by an assumption of authority on the part of the government officer however high or low in the hierarchy. I do not doubt that in criminal proceedings it would be a material factor that the actor had been thus mislead if knowledge was a necessary element of the offence, and in any case it would have a bearing on the sentence to be imposed. But that is not the question. The question is whether the character of an act done in face of a statutory prohibition is affected by the fact that it has been induced by a misleading assumption of authority. In my opinion the answer is clearly No. Such an answer may make more difficult the task of a citizen who is anxious to walk in the narrow way, but that does not justify a different answer being given." 64 His Honour formed the conclusion that the mistake in that case was one of law, not one of fact. However, as I have indicated, his Honour was in the minority, Olsson AUJ joining with the Chief Justice in upholding the appeal. 65 The difficulties in this area have been adverted to in New South Wales. In Griffin & Elliott v Marsh (1994) 34 NSWLR 104 the matter was discussed by Smart J. His Honour drew attention to the fact that by confining the defence to a mistake of fact, there may be many cases where a genuine and honest but mistaken belief as to the law may lead to some injustice. Of course, the difficulty is that the fundamental assumption of the common law is that persons know the legal obligations imposed upon them, ignorance of the law being no excuse. 66 His Honour considered the reasoning of the Court of Appeal in Von Lieven v Stewart (1990) 21 NSWLR 52, where Clarke JA referred to well-established authority that a mistaken belief by the defendant as to the legal effect of the facts known to him was no defence (see Thomas v The King (1937) 59 CLR 279 at 304). Smart J referred to a series of cases (Thomas v The King (1937) 59 CLR 279; Power v Huffa (1976) 14 SASR 337; Iannella v French (1968) 119 CLR 84 at 114-115; Von Lieven v Stewart (1990) 21 NSWLR 52 at 55), which he said demonstrate "the different situations which can arise and the different ways in which they are solved" (at NSWLR 119). His Honour said: "It has long been held that ignorance of the law is no excuse. However, mistakes of law may occur after the most careful consideration and with the advice of those who are highly skilled in the law to the effect that a particular course is permissible. There may be much to support the legal advice given. It may represent, until the decision in that case, the previously understood view. Earlier authority may be overruled or its effect re-stated. The members of appellate courts may divide upon the point. There may be sharp differences of opinion whether there was a mistake of law or a mistake of fact. In certain circumstances a mistake of law may be less blameworthy than a mistake of fact. The fineness of the legal reasoning and the distinctions employed are tantalising. I doubt whether it is appropriate to equate ignorance of the law and mistake of law too closely, bearing in mind the ways in which a mistake of law may arise. The mistake may have nothing to do with ignorance and everything to do with making a difficult decision as to what the law truly is when the competing considerations are finely balanced. Abuse must be guarded against but I would not have regarded it as being too difficult to determine whether the view of the law ultimately held to be mistaken was one supported by substantial considerations and reasonably open on an objective determination. Considerations of fairness occasion difficulty in regarding a person as guilty of an offence where he has acted on substantial, reasonable and honest legal advice. I have no such difficulty where the legal advice is cute, slick or accommodating. In such cases the client must bear the responsibility for the advice given." 67 In Griffin, Hunt CJ at CL summarised the applicable law in the following terms (at NSWLR 107-108): "It was accepted by all parties that the relevant law is to found in He Kaw The Queen (1985) 157 CLR 523 at 529-530, 567-568, 594-595, in Von Lieven v Stewart (at 66) and in Hawthorne (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120 at 131. It is sufficient for present purposes to state that law in two propositions: (1) The common law presumption is that an essential ingredient of every offence is that the defendant knew the wrongfulness of his act unless the statute excludes that presumption either expressly or by necessary implication. (2) In determining whether the common law presumption has been displaced in the particular case, regard should be had to: (a) the words of the statute itself; (b) the subject matter with which the statute deals; and (c) whether an absolute liability will assist in overcoming the mischief at which the statute is aimed." 68 In the present case it is accepted that the concept of absolute liability is not relevant, the offence being one of strict liability. 69 With respect to the Proudman v Daymon defence, Hunt CJ at CL said in Griffin (at NSWLR 109): "The second question in the stated case is directed at the finding by P J Phelan DCJ that each of the appellants honestly and reasonably believed that he or she was not obliged to answer those questions, following the advice given to them by their legal representative, that there was no such obligation because the persons were not called for evidence concerning the income or assessment of the companies involved. Such a belief must be either one of law or of mixed fact or law, as I have already indicated. It was the common approach of both parties that the intervention of legal advice made no difference as to the nature of that belief. That is sufficient to dispose of the question because, as I have also already pointed out, a mistaken belief of such a nature is incapable of providing a Proudman v Daymon defence to the charge against the appellants." 70 In the present case, the defendant says that he acted to clear the rear yard of the property in the belief that the heritage control provided by cl 18 of the LEP did not extend to the rear yard but was confined to the camphor laurel trees at the front of the property. He says that he held that belief because of the conversations he had with Ms Trueman. As I have indicated, I am satisfied that the defendant should be accepted in relation to the essential content of the conversations relating to this aspect of the matter. 71 Accordingly, I am not satisfied beyond reasonable doubt that the defendant did not hold that belief. However, the belief was wrong. The inclusion of the garden as a heritage item in Schedule D to the LEP had the consequence that before any part of the garden could be damaged, the consent of the Council was required. 72 By accepting the advice of Ms Trueman, both in relation to the area of the property protected by the LEP and as to whether or not he needed any further consent to remove items from the garden, the defendant was acting under a mistaken belief as to the law. The mistake which the defendant made was that it was lawful to remove trees and shrubs and other facilities in the rear garden of the property without the Council's consent. Although this may have been induced by a mistaken belief fostered by the representations made by Ms Trueman that the heritage restrictions applied only to the house and camphor laurels at the rear of the dwelling, the essence of that advice was an interpretation and reading down of the word "garden" in the relevant entry in the Schedule. That advice was given in relation to a question of law being the meaning of the word "garden" in the context of the Schedule. 73 In my opinion, it follows that the mistake which the defendant made was not a mistake of fact and, accordingly, a Proudman v Daymon defence is not available. Such a defence is only available in relation to a mistake with respect to an exclusively factual matter (see Griffin; Strathfield v Elvy (1992) 25 NSWLR 745). It is not a case where a mistake was made, such as the proper identity of the property or, perhaps, a belief in relation to whether or not particular trees were within the garden. The mistake in the present case was that the LEP did not protect any part of the garden other than the camphor laurel trees in the garden. At the very least that is a question of mixed fact and law. 74 It follows that I am satisfied beyond reasonable doubt that the defendant has damaged a heritage item, being part of the garden as charged. 75 Accordingly, I find the offence proved. **********