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Heatscape Pty Ltd v Mahoney

Heatscape Pty Ltd v Mahoney

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Case Copied 16 June 2017 28 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Heatscape Pty Ltd v Mahoney [2017] NSWCCA 135
Hearing dates: 16 November 2016
Date of orders: 16 June 2017
Decision date: 16 June 2017
Before: Gleeson JA; Rothman J; Button J
Decision:
(1) The questions of law before the Court are answered in the following manner:
(a) Question: Whether, upon its true construction, cl 5.10(2)(a)(iii) of the Gloucester Local Environmental Plan 2010 requires that the heritage significance of the Gloucester Main Street Precinct heritage conservation area be proved or is it sufficient to demonstrate that the subject area is described as a “Heritage Conservation Area” in Sch 5 of the Gloucester Local Environmental Plan 2010?
Answer: Upon its true construction, cl 5.10(2)(a)(iii) of the Gloucester Local Environmental Plan 2010 does not require that the heritage significance of the Gloucester Main Street Precinct heritage conservation area be proved and it is sufficient to demonstrate that the subject area is described as a “Heritage Conservation Area” in Sch 5 of the Gloucester Local Environmental Plan 2010.
(b) Question: Whether, upon its proper construction, the location and nature of the Gloucester Main Street Precinct heritage conservation area was sufficiently described in Sch 5 of the Gloucester Local Environmental Plan 2010 as required by the definition of heritage conservation area?
Answer: Yes; upon its proper construction, Pt 2 of Sch 5 of the Gloucester Local Environmental Plan 2010 sufficiently describes the location and nature of the Gloucester Main Street Precinct as a heritage conservation area.
(2) Application for case stated dismissed.
(3) The applicant shall pay the respondent’s costs of and incidental to the proceedings.
Catchwords:
LAND AND ENVIRONMENT – case stated from Land and Environment Court for offence of alteration to building without consent – question of statutory construction – Heritage Conservation Area – definition not to be construed out of the context in which words are found - not independently an element of the offence to be determined by the Court – term used as description of that which is contained in the schedule – schedule adequately prescribes the location and nature of the area – appeal dismissed.
ADMINISTRATIVE LAW – appeal on question of law by case stated – construction of primary judge confirmed – appeal dismissed.
Legislation Cited: Crimes (Appeal and Review) Act 2001
Criminal Appeal Act 1912
Environmental Planning and Assessment Act 1979
Evidence Act 1995
Gloucester Local Environmental Plan 2010
Cases Cited: Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126
Australian Heritage Commission v Mt Isa Mines Ltd (1997) 187 CLR 297; [1997] HCA 10
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389; [1996] HCA 36
Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155
Environmental Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (2014) 86 NSWLR 499; [2014] NSWCA 149
Federal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWCCA 135
Decision Date: 16 June 2017

CaseChat Overview and Summary

Heatscape Pty Ltd, the appellant, appealed against a decision of the Land and Environment Court of New South Wales, which found that the company had contravened the Heritage Conservation Area provisions under the Heritage Act 1979 (NSW). The primary dispute was whether Heatscape Pty Ltd had committed an offence by altering a building without consent in a Heritage Conservation Area. The court was tasked with determining the scope of the term "Heritage Conservation Area" as it appears in the Heritage Act.

The central legal issue was the interpretation of the term "Heritage Conservation Area" within the context of the Heritage Act. Specifically, the court needed to decide if the term, when used in the context of the offence, should be construed independently or whether it should be understood in the context of the schedule that describes the areas covered by the term. The appellant argued that the term should be construed independently, and that the schedule merely served as a description of the areas covered, not as a limit on the term's scope. The respondent, on the other hand, contended that the term should be understood in the context of the schedule, which adequately prescribed the location and nature of the Heritage Conservation Area.

The court rejected the appellant's argument, finding that the term "Heritage Conservation Area" should not be construed independently of the context in which it is found. The court held that the term is used as a description of the areas listed in the schedule, and that the schedule itself provides an adequate prescription of the location and nature of the Heritage Conservation Area. Consequently, the court found that the alteration to the building without consent did occur in a Heritage Conservation Area, and dismissed the appeal. As a result, the decision of the Land and Environment Court was upheld, and the offence committed by Heatscape Pty Ltd was confirmed.

Orders