Whitlock v Maitland City Council

CASES CITED: Lin v Fairfield City Council [2007] NSWLEC 568; Penrith Waste Services Pty Ltd v Penrith City Council (1998) 101 LGERA 98

APPLICANT Mr R Whitlock (in person) SOLICITORS N/A LEGAL REPRESENTATIVES: RESPONDENT Mr G Williams SOLICITORS Thompson Norrie

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Jagot J: A. Introduction 1 These are my reasons for decision in this appeal. The appellant, Ronald Whitlock, has appealed against his conviction in the Local Court of Maitland on 1 March 2007 for the offence of carrying out development without development consent where such consent was required on land being lots 100 and 101 DP849365, known as 101-103 New England Highway, Lochinvar on 4 July 2004. This offence was found to have been committed by the appellant by reason of the activity he carried out of selling seafood products from a mobile van located on part of this land.

2 Relevantly, s 76A of the Environmental Planning and Assessment Act 1979 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 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 n accordance with the consent and the instrument.

3 Because the appellant was convicted of this offence he has an appeal as of right against the conviction under s 31(1) of the Crimes (Appeal and Review) Act 2001. That section provides as follows: (1) Any person who has been convicted or sentenced by a Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence.

4 Other provisions of the Crimes (Appeal and Review) Act are also relevant as follows. 37(1) An appeal is to be dealt with by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by s 38.

(2) Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.

5 The Court's power to determine an appeal against conviction is contained in s 39(1) of the Crimes (Appeal and Review) Act as follows: (1) The Land and Environment Court may determine an appeal against conviction: (a) by setting aside the conviction, or (b) by dismissing the appeal.

6 An appeal in accordance with s 31(1) of the Crimes (Appeal and Review) Act was described by Preston J in the recent decision of Lin v Fairfield City Council [2007] NSWLEC 568 at [29]-[31] in the following terms: 29 The nature of an appeal to this Court under the Crimes (Appeal and Review) Act, is a re-hearing and not a hearing de novo. The nature of that re-hearing has been described in Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 and Cliftleigh Haulage Pty Ltd v Byron Shire Council [2005] NSWLEC 692 (1 December 2005) at [17]. This has a consequence that if evidence is admitted without objection in the trial below, it is not open to the appellant to challenge the admissibility of the evidence before this court. This was the holding of Kirby P in Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 686, and Talbot J in Cliftleigh Haulage Pty Limited v Byron Shire Council [2005] NSWLEC 692 at [19] and [20].

"Before this court, the appellant sought to have the evidence of prior emissions excluded from the evidence to be considered. By reason of the appellant's consenting to the admission of the evidence at the trial, it was not, in my view, open to the appellant to challenge the admissibility of the evidence before this court. Ordinarily, a party consenting to the admission of evidence at trial cannot, unless there are exceptional circumstances, seek, upon an appeal by way of re-hearing (as distinct from an appeal by way of hearing de novo), to have such evidence excluded. To allow such a facility would be contrary to the law of evidence.": at 686

31 Similarly, Talbot J in Cliftleigh said at [20]: that the Crimes (Appeal and Review) Act 2001 contains no opportunity for evidence in substitution for the evidence given at the trial below: see also Hijazi v Canterbury City Council (No 2) [2007} NSWLEC 367 at [24].

7 The appellant was not legally represented, either in the Local Court, or in this appeal.

8 In the Local Court hearing on 13 December 2006 and 1 March 2007 the Council relied on evidence of Deborah Anne Gordon and Ian Albert Fletcher, Council officers, as well as various documents. The evidence before the Local Court is summarised below.

9 Ms Gordon is a town planner. She was familiar with the land lots 100 and 101 DP849365 known as 101-103 New England Highway, Lochinvar. At all relevant times a single storey building, known as the Heritage Outpost, was located on the land across the boundaries and for two lots. Within this building, activities described as a general store, post office, newsagency and takeaway are conducted.

10 The land is zoned 2(a) Residential under the Maitland Local Environmental Plan 1993. In that zone, the nominated development purposes of dwelling house and home based child care establishment are the only purposes permissible without development consent. Within that zone, shops are a prohibited use and convenience stores are permissible with consent. Shop means a building or place, used for the purpose of selling items, whether by retail or auction, the hiring of items, or for displaying items, for the purpose of selling or hiring them, whether the items are goods or materials. Convenience store means a shop which sells a variety of small consumer goods, and is located no closer than 400 metres from commercially zoned land. There is no commercially zoned land in Lochinvar.

11 In Ms Gordon's opinion, the activities conducted on the land generally fell within the description "convenience store". On 27 October 2005 the Council granted development consent authorising the erection of storerooms and the renovation and repair of existing verandas. This consent required the construction of a car park on lot 101. Ms Gordon's search of the Council's records did not disclose any consent authorising the expansion of the convenience store to permit the sale of seafood. In Ms Gordon's opinion, as at 4 July 2004, the activity of selling seafood from a mobile van located on the land constituted an expansion of the convenience store use, which activity was permissible only with development consent. Ms Gordon noted that, subsequently, on 5 April 2005 the Council granted consent to this use as an extension to the convenience store.

12 Mr Fletcher is a development surveillance officer. On 4 July 2004, he was travelling along the New England Highway. He saw signs at intervals beside the highway advertising seafood for sale about two kilometres before the land. He arrived at the land and saw a blackboard sign saying "Fisho Here" and a seafood van parked on the vacant area beside the takeaway. He saw two people sitting on chairs behind a wooden table in front of this van. The table had a set of scales on it and two clear containers. There appeared to be a list of products and prices taped to the side of the van. When Mr Fletcher walked back to the van after some minutes, he saw a number of people standing in front of the table who were making purchases of seafood. He inspected the van, which had a sticker from New South Wales Health on it saying "food transport vehicle, licence number 16846, registration number M83086, expiry 30/6/04." While Mr Fletcher walked around the van, transactions involving the sale of seafood from the van were still being made. Mr Fletcher tried to obtain information from one of the people selling the seafood. I do not need to recall the details of all of these events, other than to observe that the police were called.

13 While waiting for the police Mr Fletcher sat at a bus stop adjacent to the land. He saw continued sales of seafood from the van, and a small truck parked across the road at an angle with a sign reading "Seafood", on it. He continued to see traffic pull up at the bus stop to approach and purchase seafood from the van. There were also people approaching the van on foot along and across the highway.

14 The police and Mr Fletcher approached the van. The owner of the land, Mr Naranjo, and the appellant, Mr Whitlock, then approached them. There were lengthy exchanges involving these people, but it is not necessary for me to record all of them, other than the following matters: (1) In the presence of the appellant a police officer said to Mr Fletcher that the trailer was registered to Ronald Whitlock of a certain address.

(2) In the presence of the appellant, a police officer said to Mr Fletcher that Ronald Whitlock owned the van.

(3) As part of this conversation, the appellant said to Mr Fletcher and the police that they had not told him what he was doing wrong, there was no proof, and he did not require any permission from the Council. Further, that there was no breach and if "he writes out a ticket, it is for the sale of food only. I am registered for food handling, so it would be a big mistake if he writes it out." Mr Fletcher then said that the infringement notice would be issued under the provisions of the Environmental Planning and Assessment Act for a development purpose, for which no development consent had been granted, and had nothing to do with the Food Act.

(4) The appellant tried later to take a photograph but the police confiscated his camera.

15 A later photo of a mobile food van was tendered in the hearing, before the Local Court. Mr Fletcher said in his cross-examination by the appellant that this photo was similar to the van he saw on the land on 4 July 2004.

16 The appellant also tendered an extract from a report to the Council with respect to another property known as Airds. This report referred to that other property as having existing use rights under the Environmental Planning and Assessment Act.

17 A penalty infringement notice, bearing a date of 10 August 2004, was also in evidence before the Local Court. This notice was addressed to the appellant. It alleged that at 12.30pm on Sunday 4 July 2004 at 101 New England Highway, Lochinvar an offence was committed, being the use of premises for the sale of seafood without development consent. The penalty infringement notice refers to an infringement being cancelled and reissued in the description of offence section. This section continued and stated that an "authorised officer [...] seafood trailer set-up in car park/vacant area, of above named premises, selling seafood to public. Development consent required and no development consent granted...".

18 The appellant cross-examined Ms Gordon and Mr Fletcher. Insofar as relevant, Ms Gordon was asked questions about the length of time the premises had operated (which she did not know), aspects of existing use rights, and requirements for development consent under the EPA Act. Insofar as relevant, Mr Fletcher was asked questions about the penalty infringement notice to Mr Naranjo. Mr Fletcher said he had been directed by senior management of the Council to cancel the penalty infringement notice to Mr Naranjo.

19 On 1 March 2007 the Magistrate convicted the appellant of the offence charged. The appellant was fined $3,000 and ordered to pay professional costs of $5,500. It is also relevant to note at this stage that the Magistrate referred at p 4 of the transcript for 13 December 2006 to an annulment application dated 21 October 2005 with respect to a penalty enforcement order for the penalty infringement notice to the appellant, which enforcement order was dated 6 November 2004. The Local Court dealt with this annulment application and granted the annulment on 25 January 2006. The matter was then adjourned for hearing before the Local Court at Maitland and the hearing took place on 13 December 2006 and 1 March 2007 as referred to above. Provisions of the Fines Act 1996 provide the relevant context to explain these events. Under Div 4 of Pt 3 to that Act, the State Debt Recovery Office may make a penalty notice enforcement order, which is an order for the enforcement of an amount payable under a penalty infringement notice, which has not been paid. Under Div 5 of Pt 3 such an order may be annulled on nominated grounds including, for example, that the person was not aware that a penalty infringement notice had been issued until the enforcement order was made. Where an order is annulled then "the Local Court is to hear and determine the matter as if no penalty notice enforcement order had been previously made" (s 51(1) of the Fines Act). However, the Local Court is not to do so if the "amount payable under the penalty notice is paid on annulment of the order". Under s 51(4), the penalty infringement notice is taken to be the court attendance notice in relation to the alleged offence if, failing payment of the penalty on annulment, the Local Court then hears and determines the matter under s 51.

20 The appellant filed this appeal on 21 March 2007. The appellant confirmed that this should be understood as an appeal against conviction. He identified two grounds in the appeal notice being, in summary, existing use rights and that he did not have to seek development approval every time he made a sale from his licensed food vehicle, as that would make his occupation useless and put all vendors, such as of ice cream, fruit, fish, coffee and the like, off the street.

21 The appellant sought leave to rely on fresh evidence as provided for, in s 37(2) of the Crimes (Appeal and Review) Act, being the provision which states fresh evidence may be given but only by leave of the Court which may be granted only if the Court is satisfied that it is in the interests of justice that the evidence be given. I deferred the question of the admission of this evidence on the basis that the evidence should be heard or tendered and tested on the voir dire and the question of its admission dealt with once all relevant circumstances were apparent. This evidence, the subject of the appellant's application for leave, is summarised below.

22 The appellant sought to tender the following documents not already in evidence before the Local Court. (a) The penalty infringement notice to the owner of the land, Mr Naranjo, involving the same alleged offence as found to have been committed by the appellant.

(b) The development application (DA) lodged by Mr Naranjo to sell seafood from mobile licensed vehicles on the land, being a DA said to have been made on the basis of the land having existing use rights as a shop or general store.

(c) The letter from the surveyor accompanying the identification survey of the land and buildings on it in 1992.

(d) A photograph of the building on the land said to be from about 1885.

(e) A newspaper article about the penalty infringement notice against Mr Naranjo having been withdrawn. (f) A letter from Mr Naranjo to the Council of 13 July 2004.

(g) A letter from the Council to Mr Naranjo of 28 June 2004 giving a period of fourteen days to cease the alleged unlawful sale of seafood from a mobile van on the land.

(h) The appellant's licence to transport seafood issued 23 February 2004 under the Food Production (Seafood Safety Scheme) Regulation 2001. This regulation, I note, constituted a regulation under the Food Act 2003 from April 2004.

(i) The penalty notice enforcement order to the appellant dated 6 November 2004 with respect to the penalty infringement notice and a response apparently to the State Debt Recovery Office from the appellant saying, amongst other things, that he did not owe the Council any money.

23 The appellant also sought leave to rely on two documents produced by Mr Robert Gulliver, being an affidavit of his opinions about the matter and an affidavit confirming his qualifications. Mr Gulliver is a former Town Clerk who obtained his local government clerk certificate in 1972 and has been long involved in local government administration. Mr Gulliver inspected certain records subpoenaed from the Council. In Mr Gulliver's opinion, and insofar as could be relevant to any issue in this appeal, the Council was incorrect to treat the building on the land as a convenience store and thus permissible with consent. It was a shop, and in Mr Gulliver's opinion, had existing use rights. Therefore, Mr Gulliver concluded the sale of seafood from a mobile van on the land, which was not a structure, was in accordance with the use of the land as a shop.

24 The appellant also called Mr Naranjo, the owner of the land, to give oral evidence and Mr Naranjo was cross-examined. This evidence insofar as could be relevant, concerned the following: (a) Mr Naranjo owned the land since 2001 or 2002.

(b) Mr Naranjo opted to take the penalty infringement notice he received to court because he believed he had existing use rights.

(c) The Council withdrew the penalty infringement notice to Mr Naranjo, being he was told a withdrawal on the basis of legal advice.

(d) Although the Council wrote to Mr Naranjo about the use on 28 June 2004 giving a fourteen day period in which to rectify matters, the penalty infringement notice was served on 4 July 2004, which was not a period of fourteen days.

(e) Mr Naranjo lodged the development application for the sale of seafood from a mobile van on the land with the intention of proving his belief that the land had existing use rights.

(f) A photograph of the building on the land which, according to inquiries made by Mr Naranjo, was from the 1880's.

(g) The activities on the land involved a post office licence for that purpose since 1946, a takeaway and general store.

(h) Mr Naranjo believed the land had existing use rights because he had seen a valuation report and spoken to long time residents.

(i) Mr Naranjo sold gas, hay, firewood, barbecues and the odd bit of agricultural machinery, which were all outside the building, although the sale transactions occurred at the cash register within the building.

(j) Cash sales from the seafood van took place at the van and Eftpos transactions within the shop.

(k) While Mr Naranjo was at part of the hearing before the Local Court, he was only there as a visitor and had not been asked by the appellant to give evidence.

25 In addition to the documents of Mr Gulliver to which I have already referred, the appellant called Mr Gulliver to give evidence and Mr Gulliver was also cross-examined. This evidence insofar as could be relevant concerned the following: (a) Mr Gulliver's work as a Town Clerk covered all aspects of local government administration and reporting on all such matters to council. After his retirement in 1990 Mr Gulliver continued to help residents in the Maitland area with local government matters.

(b) Mr Gulliver considered town planning a part of local government administration but he had not specialised in planning.

(c) Mr Gulliver knew that all applications involved a check on the zoning and what improvements were on land, and thought he had a pretty good knowledge of the Maitland LEP 1993.

(d) In Mr Gulliver's opinion, for a use to be a convenience store there had to be consent for such a use after 1993 and there was no such consent for this land.

(e) In Mr Gulliver's opinion this land was used for a shop before the Environmental Planning and Assessment Act came into force in 1979 and thus in his view had existing use rights.

(f) Mr Gulliver had no reason to consider when or whether the land was rezoned so as to create a prohibition on use because in his view lawful uses before 1979 did not become unlawful after 1979 due to existing use rights.

(g) Mr Gulliver had not seen Sch K to the Supreme Court Rules, being the expert witness code of conduct.

(h) Mr Gulliver was present for a bit of the hearing before the Local Court.

26 The appellant submitted that leave should be granted to rely on this fresh evidence. He was a layperson and said in his submissions that he thought all relevant documents had to go and were before the Local Court.

27 The appellant also submitted that there were three issues of substance involved in the appeal, which I summarise as follows: (1) The issue of the penalty infringement notice: - First, the Council had not proved that the penalty infringement notice was ever properly delivered which, according to the appellant's submissions, meant that there could be no offence. Further, the appellant said he did not know about the penalty infringement notice until much later in October 2005. Secondly, the appellant submitted that the penalty infringement notice to Mr Naranjo had been withdrawn. Mr Naranjo was the owner of the land and had later made the development application. The appellant said in his submissions that he was the licensee of the mobile van and could not lodge a development application without the owner's consent. The appellant submitted that any issue with the use of the land had to be taken up with the owner, not the appellant. (2) Existing use rights: - The appellant submitted that the fresh evidence proved that the land had existing use rights. Further, that there could not be any offence until a sale. The appellant said in his submissions that all he had done was drive a licensed food transport vehicle onto the land. There could not be any enlargement or expansion of the existing use because the mobile van was not a structure. The definition of development in s 4 of the Environmental Planning and Assessment Act does not include a motor vehicle, according to the appellant's submissions. The appellant gave an example and said "selling fish from a new fridge would not be an enlargement or expansion of a use." Moreover, when the appellant tried to take a photograph to show the van, the police confiscated the camera. The use was not a convenience store because, the appellant submitted, convenience stores do not have post offices or full takeaway food. Mr Gulliver's evidence, submitted the appellant, should be accepted. Finally, councils are inconsistent about how they treat mobile food vans. (3) Food Act licence: - The appellant submitted that a person with such a licence does not need council approval to transport and sell seafood. The Food Act overcame the EPA Act because of s 12.

28 The Council submitted that leave to rely on the fresh evidence should not be granted. In summary, it said: (1) The existing use rights issue was squarely on the table in the Local Court, as the transcript shows.

(2) The appellant had every opportunity in that hearing to call evidence about existing use rights.

(3) There is no explanation or adequate explanation why the appellant did not call such evidence which evidence would have been equally available at that time. (4) As to Mr Gulliver he had no specialised planning qualifications or experience and had not seen the expert code of conduct. Even though the expert code did not apply to Class 6 proceedings given the terms of Pt 6 r 2 of the Land and Environment Court Rules, the obligations contained in it are of such importance that evidence should not be permitted from a person unaware of the contents. The cross-examination also showed that Mr Gulliver did not understand what existing use rights involved as specifically defined in s 106 of the Environmental Planning and Assessment Act.

(5) As to Mr Naranjo his beliefs about existing use rights also did not relate to the specific requirements of s 106 of the Environmental Planning and Assessment Act, and were based on hearsay.

(7) The appeal was by way of rehearing on the evidence given before the Local Court and it was not in the interest of justice for the hearing before this Court to proceed on a different basis.

29 In answer to the appellant's submissions, the Council said: (1) As to the penalty infringement notice issue any error by the Magistrate (and there was none) was immaterial as this was a rehearing not a review. In any event, the penalty infringement notice was a non-event as it was annulled, s 51 of the Fines Act operated, and the proceedings before the Local Court were conducted as a consequence of the operation of s 51.

(2) As to the appellant not being the owner of the land the evidence of Mr Fletcher and the appellant's admissions in the appellant's submissions before the Local Court show that he, the appellant, was responsible for selling the seafood from the van, which was sufficient. Moreover, there was ample evidence of actual sales from the van.

(3) As to existing use rights there was no evidence capable of supporting such a finding before the Local Court having regard to the specific definition of existing use rights in s 106 of the Environmental Planning and Assessment Act.

30 The Council also submitted that the offence against s 76A of the EPA Act by the appellant on 4 July 2004 had been proved beyond reasonable doubt. The Maitland LEP was an environmental planning instrument. The LEP specified that the only development permissible without consent was dwelling house and home based child care establishment. All other uses required consent or were prohibited. Relevantly, convenience stores were permissible only with consent, and shops prohibited. The activities taking place on the land fit within the convenience store definition, and Council had dealt with the development applications (if that matter be relevant at all) on that basis, as the evidence discloses.

31 According to the Council's submissions, the activity of selling seafood from a mobile van outside the building was an expansion or extension of the convenience store use and thus needed consent. Even if that is incorrect and the land does have existing use rights the Council submitted that these activities still constituted an enlargement or expansion of the existing use which required consent under cl 42 of the Environmental Planning and Assessment Act Regulation 2000.

32 Moreover, the person who asserts an existing use bears the onus of proving that matter (Penrith Waste Services Pty Ltd v Penrith City Council (1998) 101 LGERA 98). Therefore even if the fresh evidence was allowed to be adduced in the proceedings over the Council's objection all it proved was the use of the land. It did not prove any of the other elements in s 106 of the Environmental Planning and Assessment Act, namely, the lawfulness of the use before an environmental planning instrument came into force that had the affect of prohibiting that use. The Council had proved that there was no consent for the activity at the time of the offence on 4 July 2004. Therefore, each of the elements of the offence had been proved beyond reasonable doubt.

33 I will deal with the appellant's submissions at this time assuming that the fresh evidence can be taken into account.

34 The appellant's first issue, if relevant at all, is misconceived and can be answered in numerous ways. The Environmental Planning and Assessment Act has provisions allowing service by post (s 153). The entire matter proceeded before the Local Court because the penalty infringement notice was annulled and s 51 of the Fines Act, which I have described above, thus operated. The appellant did not call evidence in the Local Court about service of the penalty infringement notice. And given s 153 of the EPA Act, there was no onus on the Council about service in these circumstances.

35 Further the fact that the appellant did not own the land is beside the point. Section 76A of the Environmental Planning and Assessment Act focuses on persons carrying out development not the owner of land. Whether or not a person can lodge a development application is not the test of whether a person has carried out development in breach of s 76A.

36 If the appellant intended that I should understand his submission as referring to the Council's letter of 28 June and the fact that fourteen days had not expired when the penalty infringement notice was issued, then this also would be immaterial. Such a letter from the Council could have no effect on the legality of the actions within the fourteen day period. If those actions breached s 76A then the actions remained in breach of that section, despite the letter. Alternatively, if this submission was intended to refer to the development application later lodged by Mr Naranjo and the grant of consent to it then it is also the case that neither of those actions could affect the legality of the activities which took place on the land on 4 July 2004. Moreover, it was open to the Council to withdraw the penalty infringement notice against the owner and issue a penalty infringement notice to the appellant. This is so whether or not the owner can be inferred to have authorised or did in fact authorise the appellant's activities.

37 The appellant's second issue is also no defence. In short, even if the whole of the land had existing use rights I am satisfied beyond reasonable doubt that the activities taking place with respect to the mobile food van on 4 July 2004 involved an enlargement or expansion of the actual use. This is particularly so having regard to s 107(2) of the Environmental Planning and Assessment Act and the associated regulations authorised to be made by s 108.

38 Section 107(1) provides that "Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use". Section 107(2) provides that nothing in subs (1) authorises, amongst other things, any increase in the area of the use made of a building work or land from the area actually, physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or any enlargement or expansion or intensification of an existing use (see s 107(2)(b) - (c)). The regulations, being the incorporated provisions referred to in s 108 of the Environmental Planning and Assessment Act, provide that development consent is required for any enlargement, expansion or intensification of an existing use (see cl 42). Contrary to the appellant's submissions, there does not need to be any building or structure involved in the enlargement or expansion of an existing use. The appellant's activities on 4 July 2004 were not the same as or similar to a shop owner selling another food product from an extra fridge within a food store. Therefore this comparison the appellant attempted to draw was immaterial.

39 Mr Fletcher's evidence discloses the true character of the appellant's activities on 4 July 2004. The mobile van was on the vacant part of the land. There were advertising signs leading up to and at the van describing the selling activities. Sales were taking place from the van. The appellant was the licensee of the van and made statements that constituted admissions as to his involvement in and responsibility for the selling activities. The additional evidence, referring to products such as gas, hay, firewood, barbecues and the occasional sale of agricultural equipment, did not establish that the retail activity which had taken place within the building occurred also outside the building. The activities undertaken by the appellant on 4 July 2004 were clearly of a different character. All of these matters clearly establish beyond reasonable doubt that even if the land did have existing use rights then the activities constituted an enlargement or expansion of the existing use and required development consent or, alternatively and as explained subsequently, a separate use.

40 However, as the Council correctly submitted none of the evidence (including the fresh evidence) actually established that the land did have existing use rights as defined in s 106 of the Environmental Planning and Assessment Act. The Council had no onus to disprove existing use rights in this matter. None of the evidence sought to be relied upon by the appellant proved by any permissible method, on the balance of probabilities, each and every one of the elements in s 106 (a) of the Environmental Planning and Assessment Act. Mr Naranjo's and Mr Gulliver's beliefs to the contrary did not prove these matters as nothing they said appropriately focussed on the statutory definition (as opposed to generalised ideas about existing uses).

41 On this basis the Council's evidence about the character of the use should be accepted. It establishes beyond reasonable doubt that the activities on 4 July 2004 were permissible only with consent as either a new convenience store or the expansion of an existing convenience store. In particular a convenience store is defined in a manner not limited to buildings but can include places. Seafood, as sold on 4 July 2004, was a small consumer good. The Council also proved that there was no commercially zoned land in the whole of Lochinvar so the exclusion from para (b) of the definition of convenience store is not triggered. This is sufficient to prove beyond reasonable doubt that what was being done on 4 July 2004 required consent and the Council also proved that no such consent had been granted.

42 The third and final argument of the appellant, based on the Food Act licence and in particular, s 12 of the Food Act was also misconceived. Section 12 of the Food Act is an inconsistency provision. For it to apply to any other legislation there must be inconsistency. Section 12 of the Food Act defines the sphere of operation of that Act, namely, "in relation to food for sale." For s 12 to apply there must be found inconsistency within that sphere of operation. The sphere of operation of the Environmental Planning and Assessment Act is environmental planning and assessment. Insofar as relevant it enables development as defined (which I emphasise, includes uses and not just buildings and structures) to be regulated by an environmental planning instrument. Such development capable of regulation may include restaurants, shops, convenience stores, refreshment rooms and the like. The mere fact that the proprietors of those businesses hold or may hold some licence under the Food Act has no effect whatsoever on the requirement for development consent under the Environmental Planning and Assessment Act. There is simply no inconsistency as the two pieces of legislation are regulating different things. The activities the appellant carried out on 4 July 2004 needed development consent irrespective of the licence the appellant held to transport seafood.

43 The Council has proved beyond reasonable doubt the elements of the offence against s 76A of the EPA Act, namely, that on 4 July 2004 the appellant carried out development being a use of land that required development consent under the Maitland LEP which consent had not been obtained.

44 I have not dealt with the question of leave to rely on the fresh evidence. In a real sense that becomes a moot point. With or without that evidence I am satisfied beyond reasonable doubt that the offence has been proved. There was a use of land by the appellant on 4 July 2004 that under the LEP required consent either directly through the zoning table or through the incorporation into that LEP of the incorporated provisions about existing uses under s 108 of the Environmental Planning and Assessment Act. And no consent had been granted as at 4 July 2004. This is a strong indicator that leave should not be granted to the appellant to rely on the fresh evidence.

45 Otherwise I generally accept the Council's submissions about the leave issue as summarised above. For those reasons I conclude that it is not in the interest of justice that the evidence be given and I decline to grant leave to the appellant as sought.

46 I should also note that the same conclusion must apply to the evidence sought to be subpoenaed by the appellant from Australia Post which remains outstanding. Those documents could only be relevant to the presence of a post office on the land between the dates nominated in the subpoena, namely 1971 and 2005. I have already concluded that the Council proved the offence beyond reasonable doubt even if contrary to my actual conclusion in the proceedings the land had existing use rights. Therefore the answer to this subpoena could not have assisted the appellant and the subpoena therefore should be set aside.

47 For these reasons the orders are as follows: (1) The appeal is dismissed.

(3) The subpoena to Australia Post filed 3 September 2007 is set aside. 48 Costs may be argued. [The parties addressed on costs]

49 The Council makes an application for its costs. Under s 49(4) of the Crimes (Appeal and Review) Act the Land and Environment Court may make such order as to the cost to be paid by either party as it thinks just, subject to s 70. Section 70, however, concerns costs orders against prosecutors and therefore is not relevant. However s 72 does say that an appeal court that orders an appellant or respondent to pay costs must direct that the costs be paid to the registrar of the original Local Court and must state a time within which the costs or other amount must be paid.

50 In effect and insofar as I can ascertain the appellant says that he does not actually know what the costs are that are being claimed. He has been unrepresented. He thought he had a good chance on the appeal. He is concerned that he does not have sufficient assets in relation to costs orders or otherwise and has mentioned that he might have some possibility of reaching some agreement with the Council. I am not able to comment on any of those matters because, in essence, the purpose of a costs order is essentially compensatory. In this case I am satisfied that it is just that there be an order for costs in favour of the Council although I do think that I should make provision for time to pay. And whatever happens between the Council and the appellant during that period is a matter for them not the Court.

51 Accordingly, I also order that the appellant is to pay the respondent's costs as agreed or assessed, such costs to be paid to the registrar of the Local Court at Maitland, within three months of the amount of the costs being either agreed or assessed. Orders (1) The appeal is dismissed.

(3) The subpoena to Australia Post filed 3 September 2007 is set aside.

(4) The appellant is to pay the respondent's costs as agreed or assessed, such costs to be paid to the Registrar of the original Local Court at Maitland within three months of the amount of costs being either agreed or assessed. ****************************

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