Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth

Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth - [2008] NSWLEC 149 - NSWLEC 2008 case summary — Zoe

[18]

7 The defendants submitted that: - (i) in criminal proceedings the onus is borne by the prosecutor and, subject to express statutory reversal, never shifts (Woolmington v The Director of Public Prosecutions [1935] AC 462 at 465, Cameron v Holt (1980) 142 CLR 342 at 346 - 347 and 348, He Kaw Teh v The Queen (1985) 157 CLR 523 at 534 - 535, 573 - 574 and 592 - 594), (ii) in all cases where a defendant raises a defence, the prosecutor must negative any reasonable possibility of the defence beyond reasonable doubt (R v Abusafiah (1991) 24 NSWLR 531 at 541G, R v Youssef (1990) 50 A Crim R 1 at 2 - 3), (iii) however, where a matter involves elements of the offence, the defendant bears not even an evidential burden (Azzopardi v The Queen (2001) 205 CLR 50 at [34] and Dyers v The Queen (2002) 210 CLR 285 at [9], [52], and [118] - [123]), (iv) one statutory exception is s 417A of the Crimes Act, (v) whether a provision creates a statutory exception depends on construction of the offence-creating provisions, in particular whether the requirement is part of the statement of the general rule or not (Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 257.6, (vi) Chugg shows that the question whether knowledge of the facts is peculiarly within the defendant's ken, as opposed to that of others, is relevant to this construction issue, (vii) with existing use rights, rating and taxing statutes show that councils are a repository of knowledge of the use of land (eg, the requirements for the detailed classification of the use of land for rating and valuation purposes, such as ss 493, 515, and 592(2)(a) of the Local Government Act 1993, s 10AA of the Land Tax Management Act 1956, ss 6A, 14A(1), and various other provisions of the Valuation of Land Act 1916, (viii) the focus of s 125(1) of the EPA Act is a thing forbidden to be done under the Act, (ix) nothing is forbidden to be done under the EPA Act if the thing done involves the continuance of an existing or continuing use (ss 107(1) and 109(1)), (x) specifically, an environmental planning instrument cannot forbid any such continuation as ss 107(1) and 109(1) state in terms, (xi) in other words, ss 107(1) and 109(1) operate directly on environmental planning instruments, (xii) the lack of any thing forbidden to be done is reinforced by the other part of the offence-creating provision - ss 76A and 76B, as both provisions are predicated on the requirement of "if an environmental planning instrument provides that…", yet an environmental planning instrument can never so provide with respect to the continuation of an existing use (ss 107(1) and 109(1)), (xiii) even without s 76C, the result is that the lack of existing use rights is part of the general statement of obligation, (xiv) s 76C reinforces this conclusion by expressly making ss 76A and 76B subject to all other provisions of the Act, including ss 107(1) and 109(1), and (xv) there is a significant difference between criminal and civil proceedings for these reasons, so other civil cases on the issue of onus are of limited assistance.

[22]

11 In Vines v Djordjevitch (1955) 91 CLR 512 at 519 the High Court said: 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. …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. 12 In Director of Public Prosecutions v United Telecasters Sydney Limited (1990) 168 CLR 594 at 611 the High Court said: 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.

[27]

18 The weight of authority in other jurisdictions is to the same effect, albeit recognising that different statutory schemes are in play. One example is Danielle v Shire of Swan (1977) 93 LGERA 201. One exception is Macarone v McKone [1986] 1 Qd R 284 in which the Court found that an offence creating provision opening with the words "Subject to Part III…", when Pt III was the specific part containing the existing use provisions, did not create an exception. On that basis, the Court distinguished Davis v Pember and Morris v Woollahra. Macarone was then itself distinguished in Marshall v Averay [2006] QDC 356 where the Court noted (at [39]) that the offence creating provision made no mention of existing uses (in contrast to Macarone) and concluded that, properly construed, the provisions did not indicate that the absence of a continuing pre-existing use was part of the complete factual situation giving rise to the offence. Doubts about the general applicability of Macarone were also expressed in City of Stirling v Clemente [1999] WASCA 245 at [19] - [27]. In that matter Parker J also noted (consistent with the assumption in the authorities above) that the common law principles of construction relating to the onus where a statute defines the grounds of liability apply to both civil and criminal proceedings (citing Dowling v Bowie (1952) 86 CLR 136 at 139 - 140 and Vines v Djordjevitch). Similarly, in La Rosa v City of Wanneroo (2006) 154 LGERA 11, Johnson J described these principles as principles of the common law equally applicable to civil and criminal proceedings (at [32] - [38]). Johnson J rejected an argument that there either was or was not a breach of the scheme, and with a non-conforming use there could never be a breach (being an argument similar to the defendants in this matter). He held that the non-conforming use provisions in that case were properly seen as an exception to a general rule, concluding (at [30]) that "In my view, [the clause] identifies circumstances in which a person may be excused or exempt from the operation of any provision of the scheme, and hence the operation of [the Act]; that is, where it is established that the land is being used for a nonconforming use. I do not consider the terms of the section involve an acceptance or recognition that there is no breach of the scheme, merely that no consequences flow to the person carrying on a nonconforming use, provided the relevant criteria are met". Accordingly, the defendant bore the onus of proving the exception in that matter.

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