Heatscape Pty Ltd v Mahoney

[2017] NSWCCA 135

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 Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55
Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628; [1966] HCA 74
Haider v JP Morgan Holdings Aust Ltd trading as Jade Patterson Morgan Operations Australia Ltd [2007] NSWCA 158
Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
King Gee Clothing Company Pty Ltd v Commonwealth (1945) 71 CLR 184; [1945] HCA 23
Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1
Ormwave Pty Limited & Anor v Smith [2007] NSWCA 210
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7
Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442
R v Commonwealth Industrial Court Judges; Ex parte Cocks (1968) 121 CLR 313; [1968] HCA 86

Category:

Principal judgment

Parties:

Heatscape Pty Ltd (Applicant)
Max Mahoney (Respondent)

Representation:

Counsel:
B Connell (Applicant)
A M Pickles SC / M Carpenter (Respondent)

  Solicitors:
KP Lawyers (Applicant)
Turner Freeman Lawyers (Respondent)

File Number(s):

2016/00207529

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 6

Date of Decision:

29 April 2016

Before:

Pepper J

File Number(s):

2014/60954

Judgment

1. THE COURT: Heatscape Pty Limited (Heatscape) submitted a stated case on two questions of law arising from an appeal to the Land and Environment Court of New South Wales for determination by the Court of Criminal Appeal. Pursuant to the terms of s 5BA of the Criminal Appeal Act 1912, a judge of the Land and Environment Court submitted the following questions to the Court of Criminal Appeal as questions of law arising in relation to the Land and Environment Court’s environmental offences appeals jurisdiction:

1. Whether, upon its true construction, cl 5.10(2)(a)(iii) of the Gloucester Local Environmental Plan 2010 (the GLEP) 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 GLEP;

2. 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 GLEP as required by the definition of heritage conservation area.

2. Essentially, Heatscape owns premises that were said to be covered by the GLEP and did not, in accordance with what was said to be relevant prescriptions, seek and obtain approval for work that was performed on the premises. For that conduct, Heatscape was fined and appealed to the Land and Environment Court, from which the case has been stated.

Procedural History

3. It is appropriate to set out the relevant procedural and factual history, but only so far as it is relevant for the current proceedings.

4. On 20 June 2012, Heatscape was issued with a general penalty notice for the sum of $3,000 for engaging in work done on premises without development consent, contrary to s 76A(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act). Heatscape elected to contest the penalty notice.

5. On 24 August 2012, Heatscape was issued with a Court Attendance Notice and was charged with “development without development consent”. On 15 August 2013, the prosecutor advised Heatscape, in writing, that the sole subject of the proceedings was “the replacement of the window in the northern wall with a larger window”.

6. On 30 October 2014, the Local Court found Heatscape guilty of the offence and fined it $12,000. Further, the Local Court ordered Heatscape to pay the Council’s costs of $24,000.

7. On 21 November 2014, Heatscape filed a summons in the Land and Environment Court under s 31(1) of the Crimes (Appeal and Review) Act 2001 and the hearing of that summons occurred before Pepper J on 3 and 4 June and 4 and 5 August 2015. On 29 April 2016, the Land and Environment Court issued judgment in which the Land and Environment Court made orders dismissing the appeal against both conviction and sentence, confirming the order to pay costs of the Local Court proceedings and ordered Heatscape to pay the Council’s costs of the appeal. It is from these proceedings that the questions stated have been submitted to the Court.

Facts

8. The respondent to these proceedings is the authorised officer of the former Gloucester Shire Council with delegated authority to issue Penalty Infringement Notices and Court Attendance Notices under the EPA Act. The respondent issued a Penalty Infringement Notice to Heatscape for the work done to premises without development consent contrary to s 76A(1) of the EPA Act, which work was performed on Wednesday, 20 June 2012 at Gloucester.

9. The work that was performed and which forms the basis for the alleged contravention is that Heatscape removed an external sash window on its premises at 76 Church Street, Gloucester, and replaced it with a new window of different and larger dimensions.

10. Gloucester Shire Council alleged that development consent was required by virtue of cl 5.10(2)(a)(iii) of the GLEP, which, inter alia, required development consent for “work … within a heritage conservation area”.

11. The alleged heritage conservation area included the premises in Church Street, Gloucester.

12. As is clear from the foregoing, Heatscape sought to challenge the Penalty Infringement Notices, whereupon the respondent issued a Court Attendance Notice. As earlier stated, the Local Court found Heatscape guilty of an offence and fined it.

13. Before the Land and Environment Court, the issue between the parties was whether the prosecution had established that the area that included 76 Church Street, Gloucester was a heritage conservation area as defined in the Dictionary of the GLEP. Essentially, Heatscape submitted to the Land and Environment Court, and submits before this Court, that there was no evidence in the proceedings in the Local Court (or the Land and Environment Court) on which the Courts could have found that the premises at 76 Church Street, Gloucester or the area in which it was situated were of heritage significance.

Judgment in the Land and Environment Court

14. The judgment of Pepper J dealt, as previously stated, with both the conviction and sentence. Significant portions of the learned Judge’s Reasons for Judgment deal with the sentence, which is irrelevant for present purposes.

15. Fundamentally, the issue before the Court is the construction that her Honour gave to the relevant provision, which, contrary to the submissions of Heatscape, was that it was unnecessary to prove in the Court proceedings that the area, otherwise described, was of “heritage significance”. The issue argued before the Court is whether that construction is correct.

Legislative Framework

16. It is necessary to recite some of the provisions which govern the question before the Court. Clause 1.2 of the GLEP sets out the objects (referred to as “aims”) of the GLEP in the following terms:

“1.2    Aims of Plan

(1) This Plan aims to make local environmental planning provisions for land in Gloucester in accordance with the relevant standard environmental planning instrument under section 33A of the Act.

(2)    The particular aims of this Plan are as follows:

(a)    to manage the resources of Gloucester,

(b)    to protect rural lands, natural resources and assets of heritage significance,

(c)    to manage development to benefit the community,

(d)    to embrace and promote the principles of ecologically sustainable development, conservation of biological diversity and sustainable water management, and to recognise the cumulative impacts of climate change,

(e)    to protect, enhance and provide for biological diversity, including native threatened species, populations and ecological communities, by long term management and by identifying and protecting habitat corridors and links throughout Gloucester,

(f)    to encourage a mix of housing to meet the needs of the community,

(g)    to provide a secure future for agriculture.”

17. The provisions relating to maps are described in cl 1.7 of the GLEP, in the following terms:

“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.”

18. Further, cl 5.10 of the GLEP deals with heritage conservation and is as follows:

“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,

(b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item,

(c)    disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed,

(d)    disturbing or excavating an Aboriginal place of heritage significance,

(e)    erecting a building on land:

(i)    on which a heritage item is located or that is within a heritage conservation area, or

(ii)    on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance,

(f)    subdividing land:

(i)    on which a heritage item is located or that is within a heritage conservation area, or

(ii)    on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance.

(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

(b)    the development is in a cemetery or burial ground and the proposed development:

(i)    is the creation of a new grave or monument, or excavation or disturbance of land for the purpose of conserving or repairing monuments or grave markers, and

(ii)    would not cause disturbance to human remains, relics, Aboriginal objects in the form of grave goods, or to an Aboriginal place of heritage significance, or

(c)    the development is limited to the removal of a tree or other vegetation that the Council is satisfied is a risk to human life or property, or

(d)    the development is exempt development.

(4)    Effect of proposed development on heritage significance

The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

(5)    Heritage assessment

The consent authority may, before granting consent to any development:

(a)    on land on which a heritage item is located, or

(b)    on land that is within a heritage conservation area, or

(c)    on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

(6)    Heritage conservation management plans

The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause.

(7)    Archaeological sites

The consent authority must, before granting consent under this clause to the carrying out of development on an archaeological site (other than land listed on the State Heritage Register or to which an interim heritage order under the Heritage Act 1977 applies):

(a)    notify the Heritage Council of its intention to grant consent, and

(b)    take into consideration any response received from the Heritage Council within 28 days after the notice is sent.

(8)    Aboriginal places of heritage significance

The consent authority must, before granting consent under this clause to the carrying out of development in an Aboriginal place of heritage significance:

(a)    consider the effect of the proposed development on the heritage significance of the place and any Aboriginal object known or reasonably likely to be located at the place by means of an adequate investigation and assessment (which may involve consideration of a heritage impact statement), and

(b)    notify the local Aboriginal communities, in writing or in such other manner as may be appropriate, about the application and take into consideration any response received within 28 days after the notice is sent.

(9)    Demolition of nominated State heritage items

The consent authority must, before granting consent under this clause for the demolition of a nominated State heritage item:

(a)    notify the Heritage Council about the application, and

(b)    take into consideration any response received from the Heritage Council within 28 days after the notice is sent.

(10)    Conservation incentives

The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that:

(a)    the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and

(b)    the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and

(c)    the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and

(d)    the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and

(e)    the proposed development would not have any significant adverse effect on the amenity of the surrounding area.”

19. The GLEP contains a Dictionary, or definition section, which defines a number of relevant terms in the following way:

“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.

Heritage Map means the Gloucester Local Environmental Plan 2010 Heritage Map.

heritage significance means historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value.”

20. Part 2 of Sch 5 of the GLEP makes clear that the Gloucester Main Street Precinct as shown on the Heritage Map 009 forming part of the GLEP is a Heritage Conservation Area (see [54]-[56] below). It should be noted that the GLEP adopted many terms that are in the Standard Instrument Principal Local Environmental Plan (the Standard Instrument) prescribed in s 33A of the EPA Act and cl 5.10 of the GLEP.

20. There are a number of other aspects of the EPA Act which require noting. First, s 35 of the EPA Act purports to prohibit the questioning of the validity of any environmental planning instrument in any legal proceedings, other than certain proceedings which are irrelevant for present purposes.

21. Secondly, s 55 of the EPA Act requires the relevant planning authority to prepare a document that explains the intended effect of the proposed instrument and set out the justification for making an environmental planning instrument. This includes setting out a statement of the objectives or intended outcomes; an explanation of the provisions that are to be included; the justification for those objectives, outcomes and provisions and the process by which they will be implemented; a version of the maps that are to be used, if any; and details of community consultation that is to be undertaken before consideration is given to the making of the proposed environmental planning instrument.

22. Thirdly, the Minister may make a local environmental plan only after community consultation has occurred and the Secretary of the Department has drafted the plan. At that point, the Minister may either make the plan or not make it. Further, the Minister may defer the inclusion of a matter in a plan.

23. As earlier stated, if an environmental planning instrument requires work not to be carried out except with development consent, a person is prohibited from carrying out such development: s 76A of the EPA Act. Section 125 of the EPA Act renders the carrying out of such work, without consent, an offence under the Act.

24. Lastly, there are particular provisions relating to the admissibility of environmental planning instruments, which, nowadays, are also reflected in the Evidence Act 1995.

Submissions

26. Heatscape submits that the construction adopted, and to which question one is directed, renders redundant the specific requirement of “an area of land of heritage significance” in the first line of the definition of heritage conservation area in Pt 2 of Sch 5. In other words, that phrase is rendered otiose by the construction adopted by the Land and Environment Court and requires proof only of the circumstance that the area is shown on a heritage map and the location and nature of it is described in Sch 5.

27. Heatscape further submits that there is no ambiguity in the words “an area of land of heritage significance” and that circumstance is made a precondition to an offence by the enactment. Further, Heatscape submits that the construction for which it contends creates no regulatory anomaly or inconvenience, simply because it requires a court, dealing with an offence of this kind, to decide for itself whether the area is of heritage significance and, in so doing, possibly differ from the view of the Local Council and the Minister.

28. The respondent submits that the modern approach to statutory interpretation requires that the provisions be construed to achieve harmonious goals and, construing the provisions of the GLEP in the context of the entire regulatory regime, the interpretation of the words in cl 5.10 in the manner submitted by Heatscape would render the objects inconsistent.

29. The respondent submits that cl 1.7 of the GLEP is clear and unambiguous and the Heritage Map forms part of the GLEP, rendering unnecessary further enquiry as to whether those premises are, in and of themselves, of heritage value or whether, collectively, the area is of heritage significance. The GLEP determines that the area identified on the Heritage Map is an area of land of heritage significance.

30. Further, the respondent submits that the interpretation for which Heatscape agitates would create significant uncertainty, in circumstances where an owner of premises would not know, without Court proceedings, whether or not to seek consent and whether, without consent, any work would be unlawful. This, it is submitted, would lead to considerable inconvenience.

31. On the second question that requires answer, Heatscape submits that the meaning of the terms “nature” and “purpose” must be read in a statutory context and that the Dictionary is not the sole criterion or basis upon which these words should be construed. Heatscape submits that the “nature” of the land, in context, logically relates to the aspects of “heritage significance” and gives content to the use of the words which, without that context, would be otherwise inexplicable.

32. In summary, Heatscape submits that Pt 2 of Sch 5 fails to detail “the nature” and therefore the “location and nature” of the area is not described in Sch 5 and the area in question cannot, by definition, be a “heritage conservation area”.

33. The respondent, in reply, supports the analysis that her Honour undertook and her Honour’s analysis of the principles of statutory construction, in particular. The respondent submits that the “location and nature” of the heritage conservation area are sufficiently described in the Schedule and that the primary judge correctly adopted an interpretation of that phrase that achieves the purposes of the GLEP and the EPA Act.

Principles of Statutory Interpretation

34. These reasons for judgment previously set out the relevant provisions of the statutory and regulatory scheme that are most relevant to the questions of law to be answered. Nevertheless, it is appropriate for the Court to summarise briefly the approach the Court takes to the interpretation of the prescriptions. In dealing with subordinate legislation, the same principles apply as apply to legislation: Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389; [1996] HCA 36 (at CLR 398). The GLEP should be considered a species of delegated legislation (see also King Gee Clothing Company Pty Ltd v Commonwealth (1945) 71 CLR 184; [1945] HCA 23 at CLR 195).

35. Primarily, the ordinary and grammatical meaning of the provisions to be construed will correspond with the legislative intention and will be the meaning adopted in the construction of a statute: Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (at [78]), per McHugh, Gummow, Kirby and Hayne JJ.

36. Further, it is well established that a statute must be construed as a whole and so as to provide that each of its terms are intended to give effect to harmonious goals. Each of its terms must be construed on a basis that achieves that result that will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions: Project Blue Sky Inc, supra, at [70]; see also CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 (at CLR 408), per Brennan CJ, Dawson, Toohey and Gummow JJ.

37. It is also well established that a definition “is no more than an aid to construction of the statute”: Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628; [1966] HCA 74 at CLR 635. The meaning of a definition turns on the context in which it appears, considered as a whole: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [39] and the cases there cited. Importantly, as McHugh J explained in Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 at [103]:

… [T]he function of a definition is not to enact substantive law. It is to provide aid in construing the statute. … To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment … [T]he true purpose of an interpretation or definition clause [is that it] shortens, but is part of, the text of the substantive enactment to which it applies.”

38. The ascertainment of the intention of the legislature in the promulgation of the legislation is the primary purpose of all rules of statutory construction, but the task remains the ascertainment of the objective intention of the legislature, not the subjective intention of those that may have sponsored or promulgated it: Project Blue Sky Inc, supra, at [78].

39. In the case of subordinate legislation, it is legitimate, as was noted by the primary judge, to have regard to the fact that subordinate legislation is less carefully drafted and less keenly scrutinised than primary legislation: Environmental Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (2014) 86 NSWLR 499; [2014] NSWCA 149 (at [44]), per Leeming JA, with whom Bathurst CJ and McColl JA agreed. Whatever be the legislative history or extrinsic materials relevant to the promulgation of the regulatory scheme, such material cannot displace the meaning of the text, as part of the construction of the whole of the regime: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at CLR 519, [39]. It is the foregoing principles that must be applied in the determination of the proper construction of the provisions here in question.

Resolution

Question One

40. The answer to question one stated depends, as is clear from the foregoing, on the meaning, if any, to be given to the words “land of heritage significance” in the definition of “heritage conservation area” when read into the requirement for development consent under cl 5.10(2)(iii) of the GLEP. There are a number of flaws in the submission of Heatscape.

41. First, construing the requirement for consent under clause 5.10(2)(iii) of the GLEP in a manner which did not require an independent and objective determination by the Court, or any court before whom it came, of whether the area marked in the Schedule was an area of “land of heritage significance” does not render the words in the definition otiose. Nor, if it be different, does it give those words no meaning.

42. The difference between Heatscape and the respondent is not the difference between giving the words some meaning and no meaning; it is the difference between construing the term so that the phrase “an area of land of heritage significance” is a description of that which follows, or, alternatively, requiring a court to determine, independently, whether a particular area is “land of heritage significance”. “Independently”, in the immediately preceding sentence, refers to independent of the Local Council and independent of the relevant Minister.

43. The proper construction of the definition when read into cl 5.10(2)(iii) of the GLEP is that an area of “land of heritage significance” is one that is shown on the “Heritage Map” and the location and nature of which is described in Sch 5, leaving aside “heritage items” which are currently irrelevant and separately prescribed in Sch 5, Part 1.

44. The proposition for which Heatscape submits is a proposition which would, as made clear by the primary judge, create significant uncertainty for all stakeholders. It would require each of the Minister, the Local Council and the owner of premises to be unaware of whether the premises on which work was intended to occur was in an area that a court would objectively determine was an area of land of heritage significance, before any of them understood the duties and obligations imposed by the scheme.

45. Further, whether an area is “land of heritage significance” is an evaluative exercise, the result of which determination would differ, depending upon the person considering the criteria. It contains many policy issues.

46. The purpose of defining a heritage conservation area in the terms defined in the GLEP is, amongst other purposes, to bring about a degree of certainty as to the duties and obligations of the Local Council and the owner of the premises, in particular. That purpose is achieved by treating the phrase “an area of land of heritage significance” as a description and not as an element, to be proved independently in any prosecution.

47. The alternative proposition, submitted by Heatscape, would require the conclusion that the determination by the Minister on the advice of Local Council and experts (and after consultation with the community) would be binding only to the extent that it was correct, as objectively determined, by a court in a prosecution. By analogy with the jurisprudence applicable to jurisdictional fact, this is a result that is so inconvenient that it should be avoided, if at all possible: see, by analogy, Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7, per Dixon J (at CLR 391); QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [30]-[31], per Basten JA, with whom Ward JA and Young JA agreed.

48. In QBE, supra, Basten JA said:

“[31]    It has long been accepted that matters requiring evaluative judgment are likely to be intended by Parliament to be determined, subject to ensuring compliance with legal parameters, by the repository of the power: Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; 187 CLR 297. If the statutory preconditions involved questions of law, which is not the present case, a different presumption might arise: Plaintiff M70/2011 v Minister for Immigration and Citizenship [Malaysian Declaration Case] [2011] HCA 32; 244 CLR 144 at [116] (Gummow, Hayne, Crennan and Bell JJ).”

49. In the course of the foregoing citation Basten JA refers to Australian Heritage Commission v Mt Isa Mines Ltd (1997) 187 CLR 297; [1997] HCA 10. There are obvious analogies with the purposes of the statute there under consideration by the High Court and the provisions with which the Court is now dealing. The High Court (Dawson, Gaudron, McHugh, Gummow and Kirby JJ), at 307 of the CLR commented:

“Section 22(1) obliges the Commission to keep the Register ‘in which will be listed places included in the national estate’ (emphasis added). MIM submitted that the use of the participle ‘included’ indicated that what was to be listed in the Register were places which, as a matter of objective fact, answered the definition of ‘national estate’ in s 4. That submission should not be accepted. Rather, the term ‘included’ is employed in s 22(1) to identify those places which from time to time are entered in compliance with the injunction in s 22(2) that places are not to be entered otherwise than in accordance with s 23 or s 25(2). In this way, ‘included’ is to be taken as ‘constantly speaking in the present’.”

50. Here, the expertise as to heritage significance is one held by the Local Council overseen by the Department and the Minister. No special expertise is reposed in a court in relation to such an issue. In such an evaluative exercise, the inconvenience of requiring an objective satisfaction of a judicial officer that the area is one “of heritage significance” is so great, that it should be avoided. In the words of Dixon J in Parisienne Basket Shoes Pty Ltd, supra, at 391:

“Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.”

51. The same applies in this situation. There is a proper meaning to be given to the words “land of heritage significance” and that meaning is to treat the words as a description of that which follows and all areas that satisfy subparagraph (a) and (b) of the definition of heritage conservation area are areas of “land of heritage significance”. There is no further need for a determination, independent of the Local Council and the Minister, of the satisfaction of that phrase.

Question Two

52. Question two raises whether, seemingly as a matter of fact, Pt 2 of Sch 5 conforms with the description required, namely, that it prescribed the location and nature of the heritage conservation area.

53. There is no issue before the Court that the premises owned by Heatscape are within the red hatched area on the map that is the Heritage Map. This would be a question of fact, in any event.

54. The Heritage Map is defined in the Dictionary to Pt 2 of Sch 5 and described as Heritage Map 009 forming part of the GLEP. It shows a red-hatched area described, on the map, as a “Heritage Conservation Area”. Heatscape’s premises are within that red-hatched area.

55. Part 1 of Sch 5 lists Heritage Items and is irrelevant for present purposes. Part 2 of Sch 5 is headed “Heritage conservation areas”. Under the heading to Pt 2, there are two columns each with a subheading the first of which reads “Name of heritage conservation area” and the second of which is “Identification on Heritage Map”.

56. Under the first heading is the expression “Gloucester Main Street Precinct” and under the second heading is “Shown as ‘Heritage Conservation Area’”.

57. Her Honour, the primary judge, at [160]-[161] of the judgment set out the dictionary definitions from the Oxford English Dictionary and the Macquarie Dictionary of the words “nature”, “location” and “precinct”. In Her Honour’s words “Pt 2 of Sch 5 of the GLEP plainly reveals that the description afforded to the land is adequate” (Primary Judgment at [162]).

58. The location of the area is expressly described in Sch 5 as “Gloucester Main Street Precinct”. The nature of the area of land of heritage significance is described in Sch 5 by its description as a “Heritage Conservation Area” and by reference to its identification on the Heritage Map and by reference to the map. A description by reference is nevertheless a description. And its nature is a heritage conservation area. The heritage conservation area describes the “inherent character” of the area (see definition in Macquarie Dictionary) and the “combination of qualities belonging to a …thing” (ibid).

59. It is unnecessary to determine finally whether the issue raised by the second question on the case stated is in truth a question of law. Whether the description of the area as a heritage conservation area is a description of the “nature” of the area may well be a question as to the meaning of an ordinary English word or phrase used in the statute and therefore a question of fact, not a question of law. Generally, see Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126; Ormwave Pty Limited & Anor v Smith [2007] NSWCA 210 at [12]; Haider v JP Morgan Holdings Aust Ltd trading as Jade Patterson Morgan Operations Australia Ltd [2007] NSWCA 158; Collector of Customs v Agfa-Gevaert Limited, supra, et seq.

60. The other matter that was raised, albeit in passing, during the hearing of the appeal was the protection afforded by s 35 of the EPA Act. Again, it is unnecessary to discuss this question as these proceedings do not involve a challenge to the validity of an environmental planning instrument. Nevertheless, there may be issues associated with the judgment of the High Court in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1. Further, as to the capacity or otherwise to attack such validity in a prosecution by collateral attack, see R v Commonwealth Industrial Court Judges; Ex parte Cocks (1968) 121 CLR 313; [1968] HCA 86. Again it is unnecessary to deal with either one of these issues.

61. The stated case should be dismissed and the Court should issue orders in or to the following effect:

1. The questions of law before the Court are answered in the following manner:

1. 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.

2. 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.

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