Heatscape Pty Ltd v Mahoney (No 2)

[2016] NSWLEC 45

Land and Environment Court

New South Wales

Medium Neutral Citation:	Heatscape Pty Ltd v Mahoney (No 2) [2016] NSWLEC 45
Hearing dates:	3, 4 June and 4, 5 August 2015
Date of orders:	29 April 2016
Decision date:	29 April 2016
Jurisdiction:	Class 6
Before:	Pepper J
Decision:	Appeal dismissed with costs. See orders at [295].
Catchwords:	ENVIRONMENTAL OFFENCES: appeal against conviction and sentence – whether penalty infringement notice valid – whether court attendance notice valid – whether prosecutor lawfully commenced proceedings – whether development was exempt development – onus of proving that development not exempt development – whether development required development consent – whether development carried out in a heritage conservation area as defined in the environmental planning instrument – whether prosecution discharged onus of proving that development carried out in a heritage conservation area – meaning of “heritage conservation area” – appeal against conviction dismissed with costs – appeal against sentence dismissed with costs.
Legislation Cited:	Crimes (Appeal and Review) Act 2001, ss 31, 32, 37, 38, 49 Crimes (Sentencing Procedure) Act 1999, ss 3A, 10, 10A, 21A Criminal Procedure Act 1986, ss 3, 14, 16, 20, 21, 172, 173, 174, 175, 179, 215 Environmental Planning and Assessment Act 1979, ss 5, 33, 33A, 76, 76A, 125, 126, 127, 127A Environmental Planning and Assessment Regulation 2000, cl 284 Fines Act 1996, ss 20, 22, 23, 23A, 24E, 24I, 37, 42, Divs 2A, 3, 4 Gloucester Local Environmental Plan 2010 cll 1.2, 1.7, 3.1, 5.10, Sch 2, 5 Interpretation Act 1987, s 3 Land and Environment Court Act 1979, ss 21B, 32, 33, 68 Land and Environment Court Rules 2007, Pt 10, r 1 Legal Profession Act 2004, s 302A Local Government Act 1993, s 697 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cll 1.15, 1.16, 2.50A, 2.51, 2.53
Cases Cited:	Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Blue Mountains City Council v Carlon [2008] NSWLEC 296 Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155 Calleja v Botany Bay City Council [2005] NSWCCA 337; (2005) 142 LGERA 104 Cameron v Eurobodella Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Carlino v Leichhardt Municipal Council [2005] NSWLEC 198; (2005) 144 LGERA 235 Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140 Chin v Ryde City Council [2004] NSWCCA 167; (2004) 133 LGERA 312 Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 City of Sydney v Schwartz [2003] NSWLEC 261 Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75; (2012) 186 LGERA 442 Council of the City of Sydney v Adams [2015] NSWLEC 206 Council of the City of Sydney v Trico Constructions Pty Ltd [2015] NSWLEC 56 Cowra Shire Council v Fuller [2015] NSWLEC 13 Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379 Department of Environment and Climate Change v Olmwood Pty Ltd [2010] NSWLEC 15; (2010) 173 LGERA 366 Director General, Department of Land and Water Conservation v Bailey [2003] NSWCCA 361; (2003) 136 LGERA 242 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Director-General of the Department of Environment, Climate Change v Walker Corporation Pty Limited (No 2) [2010] NSWLEC 73 Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 2) [2011] NSWLEC 229 Director-General, Department of Natural Resources v Gleeson [2007] NSWLEC 749 Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594 Egan v Hawkesbury City Council (1993) 79 LGERA 321 Environment Protection Authority v Attard [2000] NSWCCA 242 Environment Protection Authority v Djura [2012] NSWLEC 122 Environment Protection Authority v Fletcher [2001] NSWLEC 104; (2001) 114 LGERA 187 Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 Environment Protection Authority v Riverina (Australia) Pty Ltd [2014] NSWLEC 190 Environment Protection Authority v Schon G Condon as liquidator for Orchid Holdings (NSW) Pty Ltd (in liq) [2014] NSWCA 149; (2014) 86 NSWLR 499 Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 Filipowski v Fratelli D'Amato Srl [2000] NSWLEC 50; (2000) 108 LGERA 88 Filipowski v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104 Fletcher v Byron Shire Council (No 2) [2010] NSWLEC 226 Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Gore v The Queen [2010] NSWCCA 330 Heatscape Pty Ltd v Mahoney [2015] NSWLEC 126 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661; (1998) 103 LGERA 355 Holroyd City Council v El-Khouri [2008] NSWLEC 83 Hunter Water Board v State Rail Authority of New South Wales (No 2) (1992) 75 LGRA 22 Hurstville City Council v Naumcevski [2011] NSWLEC 226 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 296 Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231 Ku-Ring-Gai Council v Vinci [2007] NSWLEC 283 Lane Cove Council v Wu [2011] NSWLEC 43 Lavorato v The Queen [2012] NSWCCA 61; (2012) 82 NSWLR 568 Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Lloyd v Wollongong City Council [2015] NSWLEC 146 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101 Matic v Mid-Western Regional Council [2008] NSWLEC 113 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 Mosman Municipal Council v IPM [2016] NSWLEC 26 Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 3) [2005] NSWLEC 423 Olsson v Goulburn Mulwaree Council [2010] NSWLEC 169; 176 LGERA 71 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 Parramatta City Council v Cheng [2010] NSWLEC 94 Pittwater Council v Scahill [2009] NSWLEC 12;(2009) 165 LGERA 289 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Port Stephens Council v SS & LM Johnson Pty Limited [2007] NSWLEC 30; (2007) 152 LGERA 193 Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116 Queanbeyan City Council v Kovacevic [2015] NSWLEC 152 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Paris [2001] NSWCCA 83 R v Piccin (No 2) [2001] NSWCCA 323 R v Wickham [2004] NSWCCA 193 Ryde City Council v Pedras [2009] NSWCCA 248 Sutherland Shire Council v Benedict (No 4) [2015] NSWLEC 101 Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 Thomson v Hawkesbury City Council [2009] NSWLEC 151 Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 Willoughby City Council v BCPD Pty Ltd [2010] NSWLEC 163 Willoughby City Council v Finlay (No 2) [2010] NSWLEC 233 Wollongong City Council v Ensile; Wollongong City Council v Hogarth (No 4) [2008] NSWLEC 149; (2008) 71 NSWLR 563 Woollahra Municipal Council v JPS Development & Construction Pty Limited [2007] NSWLEC 595 Woolmington v Director of Public Prosecutions (UK) [1935] AC 462
Texts Cited:	Macquarie Dictionary (online ed) Oxford English Dictionary (online ed) The Oxford English Dictionary (2nd ed)
Category:	Principal judgment
Parties:	Heatscape Pty Ltd (Appellant)  Mr Maxwell Mahoney (Respondent)
Representation:	Counsel: Mr J Dupree (Appellant)  Ms M Carpenter (Respondent)    Solicitors: KP Lawyers (Appellant)  Turner Freeman (Respondent)
File Number(s):	14/60954

TABLE OF CONTENTS

TOPIC

Heatscape Appeals Against its Conviction and Sentence in the Local Court for Carrying Out Development Without Consent - [1]

Nature of an Appeal Against Conviction and Sentence - [9]

History of the Proceedings - [21]

The Issues Raised on Appeal - [30]

The Evidence on Appeal - [32]

Heatscape Sought Leave to Adduce New Evidence - [49]

The Appeal Against Conviction - [53]

Mr Mahoney’s Legal Authority to Issue the PIN - [53]

The Validity of the CAN - [82]

The Defect in the PIN Did Not Affect the Validity of the CAN - [82]

The Challenge to the Order Requiring the Council to Elect Must Fail - [102]

The CAN Was Not Defective Because the Date of the Commission of the Offence Was Incorrect - [117]

The Offence of Development Without Development Consent - [124]

Was Development Consent Required for the Development? - [130]

Legislative Framework - [136]

Principles of Statutory Construction Applicable to the GLEP and the Exempt and Complying Development SEPP - [149]

Was Development Consent Required? - [153]

Summary: the Premises are Located in a Heritage Conservation Area - [172]

Was the Development Exempt Development? - [173]

Onus of Proof - [184]

The Development Was Not Exempt Development - [211]

Under the GLEP - [214]

Under the Exempt and Complying Development SEPP - [218]

Summary: Heatscape is Guilty of the Offence as Charged - [226]

The Appeal Against Sentence - [227]

Sentencing Principles - [227]

Objective Circumstances of the Offence - [234]

Nature of the Offence - [235]

Maximum Penalty - [236]

Environmental Harm Caused by the Commission of the Offence - [238]

Heatscape’s State of Mind in Committing the Offence - [240]

Heatscape’s Reasons for Committing the Offence - [249]

The Foreseeability of the Risk of Harm to the Environment - [251]

The Practical Measures Available to Heatscape to Avoid Harm to the Environment - [253]

Control Over the Causes of the Harm - [254]

Conclusion on Objective Gravity - [255]

Subjective Considerations - [256]

Conclusion on Subjective Circumstances - [261]

Deterrence, Denunciation and Retribution - [262]

Evenhandedness - [266]

Appropriate Penalty to be Imposed - [270]

Whether an Order Under ss 10 or 10A of the CSPA Ought to be Made - [273]

Costs - [282]

Costs in the Local Court - [284]

Costs of the Appeal - [293]

Orders - [295]

Judgment

Heatscape Appeals Against its Conviction and Sentence in the Local Court for Carrying Out Development Without Consent

1. On 24 August 2012, the prosecutor, Gloucester Shire Council (“the council”), commenced summary criminal proceedings in the Local Court against Heatscape Pty Ltd (“Heatscape”), by issuing a Court Attendance Notice (“CAN”) which stated that Heatscape had “carried out building works and signage without consent” to premises at 76 Church Street, Gloucester (“the premises”) on 20 June 2012, contrary to s 76A(1) of the Environmental Planning and Assessment Act 1979 (“EPAA”).

2. It was not contested that Heatscape was the registered proprietor of the premises.

3. On 30 October 2014, McCosker LCM found the offence proved, in short, because Heatscape had removed an external sash window on the premises and replaced it with a new and larger fixed window in the same location, in circumstances where development consent was required for that activity.

4. The external wall where the window was replaced was located along the northern side of the premises adjacent to a laneway.

5. On 21 November 2014, Heatscape filed a summons in this Court appealing against the conviction and sentence imposed by the Local Court. No less than 24 separate grounds of appeal were listed in the summons.

6. The appeal should have been a relatively straightforward, and therefore, inexpensive affair. As Mr James Dupree, counsel appearing for Heatscape, noted on the first day of what became a four day appeal (originally listed for two), “one has to be proportionate about these things, one doesn’t go off and run an administrative law case over a $3,000 penalty notice” (T47:37-38). Yet, despite this unassailable observation, this is precisely what Heatscape endeavoured to do before this Court. What is more, in addition to misconceiving the nature of the appeal (which was reflected in its extensive written submissions), Heatscape frequently raised issues for the first time on appeal, it raised issues that were subsequently not developed or were seemingly abandoned, and it generally failed to conduct itself in a manner that facilitated the expeditious and efficient conduct of the proceedings. If every legal point raised by Heatscape and every case referred to by it (most of which were either irrelevant, distinguishable, or both) was the subject of express discussion in these reasons, the judgment would be much longer than its already excessive length.

7. While a criminal defendant is entitled to conduct its defence vigorously and demand, at all times, that the prosecutor prove the case against it beyond reasonable doubt, there should be, as Mr Dupree sagely stated, a degree of “proportionality”, if not reasonableness, brought to bear by an appellant in proceedings commenced in Class 6 of the Court’s jurisdiction. In this appeal this was absent. As a consequence, had Heatscape been successful, the manner in which it ran the appeal may have been reflected in any costs award made in its favour.

8. But, as it transpired, it was not necessary to deal with the costs implications of Heatscape’s conduct because, for the reasons that follow, the appeal against both conviction and sentence is dismissed with costs.

Nature of an Appeal Against Conviction and Sentence

9. In Cameron v Eurobodella Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 Preston J elaborated upon the nature of a Class 6 appeal (at [10]-[12]). A similar exercise was undertaken by me in Thomson v Hawkesbury City Council [2009] NSWLEC 151 (at [43]-[44]).

10. In summary, an appeal against conviction is made to this Court as of right under s 31(1) of the Crimes (Appeal and Review) Act 2001 (“the Appeal and Review Act”).

11. An appeal against conviction is dealt with by way of rehearing on the basis of certified transcripts and evidence adduced in the Court below (s 37(1) of the Appeal and Review Act).

12. The Court considers the matter afresh and resolves for itself the ultimate issues for determination. Contrary to Heatscape’s submissions, it is not necessary for the Court to find fault or error with the lower court’s reasoning (Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 at [6]).

13. Because the appeal is not for error, it was not incumbent upon Heatscape to demonstrate that a conclusion was not open to the court below “in the sense of being a conclusion to which on the evidence, it should not have come. It is merely necessary to persuade this Court on a review of the evidence that guilt is not, to the necessary standard, proved by the prosecutor” (Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661; (1998) 103 LGERA 355 at 678C).

14. The Court may determine an appeal against conviction by setting aside the conviction or by dismissing the appeal (s 39 of the Appeal and Review Act).

15. The Court may grant leave to adduce new evidence only if it is satisfied that it is in the interests of justice to do so (s 37(2) of the Appeal and Review Act and see Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 at [34], Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231 at [13] and Fletcher v Byron Shire Council (No 2) [2010] NSWLEC 226 at [13]).

16. There is, similarly, an appeal as of right against sentence pursuant to s 31(1) of the Appeal and Review Act. However, there is a distinction in the Act between how appeals against sentence and appeals against conviction are to be conducted by appellants insofar as there is no equivalent to s 37 of the Appeal and Review Act in an appeal against sentence. The Appeal and Review Act is therefore silent on the nature of an appeal against sentence, and, in particular, whether leave is required to adduce fresh evidence on the appeal.

17. In Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 (at [33]-[51]) the Court discussed this legislative inconsistency and concluded that (at [51]):

Notwithstanding the legislative lacuna on the nature of an appeal against sentence only under the Act, the Court proceeded on the basis that the appeal was by way of rehearing, absent the limitation on adducing fresh evidence contained in s 37(2). Thus the Court resolved for itself the ultimate issues for determination, in this case, the appropriate sentence to be imposed for the offence …

18. Consequently, an appeal against sentence proceeds by way of rehearing but without the need for an appellant to seek the leave of the Court to adduce fresh evidence.

19. Notwithstanding the nature of the appeal, Heatscape invited the Court to “bifurcate” (T109:37) the proceedings before it pursuant to the power contained in s 49(2) of the Appeal and Review Act and dismiss the appeal on a “prima facie” basis, presumably on the basis of a no case application (T109-110). This meant ignoring, for the purpose of determining the application, some of the evidence before the court below, in particular, the 11 June 2012 letter.

20. But the application ignores the nature of the appeal against conviction explained above and the plain and unambiguous language of s 37 of the Appeal and Review Act. It was not a course that the Court was, on appeal, inclined to follow and it refused to do so.

History of the Proceedings

21. On 20 June 2012, Heatscape was issued with General Penalty Notice 3051361877 (“PIN”) for the sum of $3,000 for the offence.

22. The PIN stated the following:

It is alleged at --:-- hrs to --:-- hrs on Wed (day) 20.06.12 date at 76 Church Street (street) between King Street and Denison Street suburb Gloucester…the following offence was committed…the carrying out of building works signage without development consent.

23. The issuing authority was purportedly signed by Max Mahoney (although this is not immediately apparent from the signature and is a matter of inference based on later documentation, such as the CAN).

24. As was its right, Heatscape elected to contest the PIN and, on 24 August 2012, a CAN was issued to Heatscape by the “prosecutor”, “Max Mahoney”.

25. At no point, however, did Heatscape seek to challenge the lawfulness of the PIN or the authority to issue it in the court below.

26. The CAN stated as follows:

DETAILS OF COURT LISTING

The Court Attendance Notice has been listed before Gloucester Local Court on

Date:      26/09/2013       Time:       9.30 AM

Place:      CHURCH STREET GLOUCESTER NSW

DETAILS OF THE DEFENDANT

Defendant       HEATSCAPE PTY LTD    

ADDRESS:       PO BOX 386         

GLOUCESTER 2422               

DETAILS OF PROSECUTOR

Prosecutor:          MAX MAHONEY

Department / Organisation:    Gloucester Shire Council – 101569

Date of Issue of Court Attendance Notice: 24/08/2012

Telephone:         State Debt Recovery Office 1300 138 118

DETAILS OF OFFENCE

Description of Offence:    Development without development consent – other - corporation

Date & Time of Offence: 20/06/2012

Place of Offence: 76 CHURCH ST GLOUCESTER

Short Particulars: LOCATION: 76 CHURCH ST; ADD. PARTICULARS: CARRY OUT BUILDING WORKS AND SIGNAGE WITHOUT CONSENT;

Statutory Provision Describing Offence: Environmental Planning and Assessment Act 1979, Section 76A(1)(a) & Section 125(1).

Law Part Code: 68246

27. Heatscape applied in the court below to have the proceedings dismissed on the ground that the CAN was duplicitous. On 29 May 2013, McCosker LCM held that the CAN was duplicitous. But his Honour declined to dismiss the proceedings and instructed the council to elect which offence it intended to prosecute.

28. Therefore, on 15 August 2013, the council advised Heatscape in writing that, in accordance with the orders made by McCosker LCM, the “sole subject of the proceedings” was “the replacement of the window on the northern wall with a larger window”.

29. On 30 October 2014 McCosker LCM found Heatscape guilty of the offence. His Honour fined Heatscape $12,000 and ordered Heatscape pay the council’s costs of $24,000.

The Issues Raised on Appeal

30. Notwithstanding that there is no necessity to demonstrate error on the part of the court below, the summons contained a plethora of grounds of appeal, many of which were repetitive or were written in a manner which obfuscated the central issues required to be adjudicated upon in this appeal.

31. From Heatscape’s written and oral submissions the following matters for determination were distilled:

1. whether, for a building, work, relic or tree to form a part of a heritage conservation area, it had to be established that the building, work, relic or tree was of “heritage significance”;

2. whether the Gloucester Main Street Precinct, being the heritage conservation area in which the premises were alleged to be located, constituted:

1. a heritage conservation area that was sufficiently identified on the relevant heritage map contained in the relevant environmental planning instrument, the Gloucester Local Environmental Plan 2010 (“GLEP”); and

2. a heritage conservation area the location and nature of which was sufficiently described within Sch 5 of the GLEP.

3. whether the council bore the onus of proof to establish, beyond all reasonable doubt, that the development was not exempt development;

4. whether the development constituted exempt development, pursuant to ss 76 and/or 76A of the EPAA, by reason of:

1. Sch 2 of the GLEP; and/or

2. cl 2.51(b) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (“the Exempt and Complying Development SEPP”);

5. whether Mr Mahoney was at all relevant times an appropriate or authorised officer of the council with the legal authority or capacity to commence the proceedings;

6. whether the CAN was affected by error rendering it invalid as a result of:

1. duplicity contained within the PIN; and/or

2. the erroneous order by McCosker LCM requiring the council to elect an offence to remedy the duplicity contained within the original CAN; and

7. the appropriate weight to be given to Heatscape’s mitigating factors when determining the appropriate sentence to be imposed upon it.

The Evidence on Appeal

32. The following evidence, contained in the court book, was before the Court:

1. the PIN;

2. the CAN;

3. the judgment of McCosker LCM delivered on 5 July 2013 relating to duplicity in the CAN;

4. a letter dated 15 August 2013 from Bowen-Thomas & Barlow, the solicitors for the council, to Corporate Network Legal making the election as to the offence charged;

5. the transcript of the Local Court proceedings on 8 May 2014;

6. three colour photographs, two of which were dated 11 May 2012, and one which was dated 8 June 2012;

7. a letter dated 11 June 2012 from Heatscape to the General Manager of Gloucester Shire Council;

8. an A3 colour copy of the GLEP Heritage Map – Sheet HER_009 (“Heritage Map 009”);

9. an enlarged portion of the Heritage Map 009, showing the Gloucester Main Street Precinct;

10. an A2 colour copy of the Heritage Map 009;

11. the judgment of McCosker LCM dated 30 October 2014; and

12. the transcript of the Local Court proceedings on 30 October 2014.

33. The transcript of the Local Court proceedings containing the closing submissions of the parties on 17 June 2014 was not tendered by either party.

34. Mr Roger Stimson was the sole witness called by the council in the Local Court proceedings. He was an environmental planner employed by the council from 2009 to 2013. Mr Stimson explained that his “role in the council at that time was to receive and assess all applications of a commercial type nature including applications for commercial premises in Church Street” (T27:32-34).

35. Mr Stimson gave evidence in relation to the location of the premises. During examination in chief, Mr Stimson was given a copy of Heritage Map 009. Mr Stimson identified an area hatched in red as constituting the Gloucester Main Street Precinct heritage conservation area. He described that area in the following way (T18:44-48 and T19:3-4):

The area is centred on the main street of Gloucester which is Church Street. Church Street runs in a north-south – approximately north-south orientation. The heritage conservation area commences at the northern end of Church Street at the intersection of Queen Street… and continues south along Church Street until approximately the intersection of Hume Street with Church Street.

36. Mr Stimson identified where the premises were located (T20:11-14):

Q.    Mr Stimson from your knowledge of the Gloucester area, the Gloucester township, does 76 Church Street fall within the area between Queen Street and Hume Street?

A.    Yes it does.

37. Mr Stimson also gave evidence that he attended the premises on two occasions, namely, on 11 May 2012, together with Mr Max Mahoney, and on 8 June 2012.

38. Mr Stimson was shown two photographs of the window the subject of the proceedings. He stated that he had taken the photographs on 11 May 2012, which accorded with the date-stamp on the photographs. Mr Stimson described the two photographs as follows (T21:41-48 and T22:47-48):

The top photo depicts the northern side elevation of 76 Church Street. It shows some preparation done to the external fabric there to prepare for painting. There is a tradesman up a ladder and I see a number of windows opening into the laneway there.

…

The bottom photograph shows the street or eastern elevation of 76 Church Street and that most of the façade has been painted an orange colour.

39. Mr Stimson also gave the following evidence about the forehead in the foreground of the first photograph (T21:30-37):

Q.    I think in one of those photographs and it may be the top one of the two there appears to be the forehead of a person in the bottom right hand corner of the photograph, do you recognise the forehead of the person just for completeness?

A.    I recognise that forehead.

Q.    Whose is it?

A.    That’s the forehead of Mr Max Marnie [sic].

40. Mr Stimson then gave evidence that he returned to the premises on 8 June 2012 and that he noticed that the window had been removed and a “much larger glass window had been installed in its place” (T24:16-17).

41. Mr Stimson was then shown another photograph, about which he stated the following (T24:34-38):

Q.    What can you say about the location of that window as against the window that we saw in the earlier photograph which is exhibit 3, is it in the same place or a different place?

A.    It’s in approximately the same location. You can see by this photograph where the old window – the earlier window was placed before it was removed.

42. Finally, Mr Stimson gave evidence that no development application had been submitted to council for the activity of replacing the window (T25:50-26:3, 27:36-38 and 29:3-6 respectively):

Q. So are you able to say whether any written application for development consent was received by council for this replacement window with a larger window?

A.    Yes I can say and no such application was received.

…

Q.    During the relevant period did you receive any application in connection with these premises?

A.    No.

…

Q.    To your knowledge was any correspondence or notification received by council to identify the intention to perform this particular work, namely replacement [sic] window with a larger window.

A.    No.

43. Heatscape did not relevantly cross-examine Mr Stimson on this evidence. It was unchallenged.

44. Heatscape called Mr Robert Charman as a witness. Mr Charman was present at the premises in May 2012, because he had been engaged to paint them (see T68:14-16 and 69:14-22). The following evidence was elicited from Mr Charman (T68:18-69:10):

Q.    During the course of you painting in the period of May to June, did you have a conversation with Mr Max Marnie of the council?

A.    Yes.

Q.    Do you recall the words that you said to Mr Marnie and do you recall the words that Mr Marnie said to you?

A.    Mr Marnie said to me that he didn’t care what happened from the return of the building to the front … No, he – he said that he wasn’t concerned about the side of the building, it was the return of the building to the front.

Q.    In respect of the building, what did you say to Mr Marnie?

A.    So I could keep on painting up the side.

Q.    And what did he say?

A.    He said that would be all right.

…

Q.    In respect of the window on the side of the building, could you describe the window at a time prior to the larger window being put in place[?]…

A.    There was a – it was a sash window in – in not good repair at all, it was very poor, in poor condition.

45. In cross-examination Mr Charman gave the following further evidence (T69:14-22):

Q.   Just so that I understand your evidence clearly, you were there as a painter?

A.    True, yes.

Q.   And you spoke to Mr Marnie about the painting?

A.   No, he spoke to me.

Q.    But that was the conversation about the painting work you were doing.

A.    True, yes.

46. Finally, a letter dated 11 June 2012 from Heatscape to the council was relied upon by Heatscape. The header of the letter read as follows:

HEATSCAPE PTY LIMITED

76 Church Street

Gloucester

NSW 2422

47. The letter then stated (emphasis added):

11 June 2012

The General Manager

Gloucester Shire Council

89 King Street

Gloucester

NSW 2422

Dear Mr Gardner,

RE 76 Church Street, Gloucester NSW (“the property”)

We refer to the letters from Mr Green dated 15th May 2012 (“Councils first letter”), Mr Max Mahoney dated 16th May 2012 (Councils second letter) and 1st June 2012 from Mr Graham Gardner (councils third letter) and the letter from Heatscape Pty Limited dated 15th May 2012 (“Heatscape’s first letter”).

We also refer to the meeting between Heatscape and Mr Max Mahoney and Mr Roger Stimpson on the 15th of May 2012 (“the first meeting”) and the meetings between Heatscape and Mr Graham Gardner on the 23rd May 2012 (“the second meeting”) and on the 30th May 2012 (“the third meeting”).

We note that Mr Mahoney and Mr Stimpson have attended the property on the 11th May 2012 (the first attendance”) and the 8th June 2012 (“the second attendance”).

We also note that Mr Mahoney and Mr Stimpson attended at 21 Denison Street Gloucester on the 11th May 2012 at which time there was a conversation with Mrs Lindy Dupree (“the conversation”).

The first point that we wish to make is that the matters canvassed in the above need to be kept in context and in proportion.

We observe that Heatscape’s first letter remains unanswered as to the specific matters raised in it and that further the matters raised in Councils first letter (to which Heatscape’s first letter was addressed) were agreed to be suspended on the basis that Heatscape would meet with Mr Gary Smith and consider the matters raised by him in any subsequent report to Council.

We confirm that Heatscape agreed to meet with Mr Smith and has considered with great interest the subsequent report.

We confirm that at the third meeting it was agreed that Heatscape would use the range colour for the trim suggested by Mr Smith on the basis that Councils expert is of the opinion that the undercoat presently on the property is within the range of acceptable heritage colours.

No doubt Council accepts the advice of Mr Smith and continues to promote his advice as being the opinion of Council.

The point of departure between Heatscape and Mr Gardner is the view expressed by Mr Gardner to the effect that Clause 5:10(2) of the Gloucester LEP 2010 requires the submission of a development application as asserted on the first page of Councils third letter.

Heatscape is of the opinion that Mr Gardner’s opinion does not accord with the requirements of the LEP and we now set out the basis for such a view:

It would appear from Councils third letter that Mr Gardner accepts that the property is not included in schedule 5 (at page 52 of 97 of the LEP) as an Heritage Item and he seems to rest his assertion the property is within an heritage conservation area.

It would appear that Mr Gardner does not consider the dictionary ascribed meaning of “heritage conservation area” which is in terms:

“…

“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,

…”

It is clear that there are two elements to be satisfied for clause 5:10(2)(iii) to be satisfied which are, it would seem to be that

1. shown on the Heritage Map as a heritage conservation area

2. the location and nature of which is described in Schedule 5,

It is clear that the location of 76 Church Street Gloucester is not included in Schedule 5 and to the contrary it seems to be expressly excluded by there being no reference to it.

Hence it is that 76 Church Street Gloucester is not a building, work relic or tree as referred to in 5:10(2).

It is also noteworthy that the Development Control Plan 2010 5.1(iv) deals only with Heritage Items such that it is referable back to Schedule 5 of the LEP.

It is clear from all that has been said on behalf of Heatscape in respect of the question of the work at the property that Heatscape is only too happy to have the property painted in a suitable colour and will continue to work with Council to achieve an harmonious result.

The point of departure is that Heatscape does not believe that the law requires it to acquiesce in Councils demand to lodge a development application.

It is apparent that Councils concern, as expressed by Mr Mahoney, is focussed on the street front to Church Street.

This arises from Mr Mahoney’s advice on site that “…We [meaning the Council} do not care what you do in the lane way [meaning the wall along the boundary of lots 21 and 22 and the wall of the property within the boundary of lot 18] or inside the building [meaning the property] …” (“the Councils representation”).

The Councils representation was heard by many witnesses.

Acting on Councils representation and on the necessity to repair and maintain the fabric of the property you will no doubt be aware that a dilapidated window has been repaired by its replacement with a fixed window in heritage coloured trim.

The necessity of this repair was obvious and involved a window that was old, weather affected and in a position where the building plates were rotten and also needed repair by replacement.

Additionally the OHS requirement of safety to the workforce occupying the property necessitated a window that was capable of being made secure which was not the case with the window that was replaced.

It is undoubtedly well known by Council as to the history of lawlessness occurring in the laneway constructed on lots 21 and 22.

There are a number of matters that caused Heatscape concern in the manner that Mr Mahoney and Mr Stimpson have conducted themselves. In detailing that which follows:

On the 11th May 2012 during the conversation after Mr Mahoney made a number of statements Mr Stimpson turned to Mrs Dupree and in what appeared to be threatening manner said “…

On the 8th June 2012 the second attendance began with Mr Mahoney asking permission to enter the property (“the request”).

On making the request Mr Mahoney was told that he should not and that he should make the request of Mrs Dupree who was at 21 Denison St Gloucester.

Mr Mahoney thereupon entered into the property without permission and thereby trespassed. Mr Stimpson, who was accompanying Mr Mahoney made no request to enter and simply followed Mr Mahoney and thereby trespassed on the property

It is noteworthy that any materials gathered by either Mr Mahoney or Mr Stimpson were gathered illegally as a result these trespass.

As to the consequences of trespass and the view adopted by the High Court we refer you to the successful damages claim in Dillon –v- Plenty

Shortly after Mrs Dupree arrived at the property and requested both Mr Mahoney and Stimpson to leave the property.

Mr Mahoney at first refused and after a short while complied with Mrs Dupree’s request.

As Mr Mahoney was leaving, in a threatening voice said to Mrs Dupree “…Don’t think about moving in …”. This was no doubt referable to the travel agency and the bookshop …” (“the trading threat”)

Council would no doubt agree that, whatever the difference of opinion as to the law between Council and Heatscape, there is no place for this threatening behaviour, especially when it is directed to a woman by two men seemingly attending together.

No doubt Councils Officers do not have the necessary corporate memory as to the fact that the travel agency was prior to 5th September 2006 a tenant in respect of the property from where it traded and will be continuing that landlord and tenant relationship with the current owner Heatscape Pty Limited.

In any event there is not a change of use as is referred to in DCP 2010 clause 5.1(iii).

We observe that in paragraphs numbered 3 and 5 of the Councils second letter would be made clearer when the Council analyses D/A 2011/2075 (“the Harvey World Travel Agency application”).

It is clear that 36 Church Street Gloucester NSW is included in Schedule 5 and thus is an heritage item.

A casual observation, applying Mr Smith’s criteria, that no attempt to adhere to the DEC or the LEP requirements as to heritage requirements.

The building has been recently painted in the Harvey World Travel Groups Corporate colours (blue and white).

The signage is large and again pays no regard to heritage consideration.

The tenant is a company Sharenern Pty Limited trading as Harvey World Marketing which company is controlled by Mr and Mrs Ernie and Sharee Abeysekera.

It was Mrs Sharee Abeysekera who in May 2012 was observed to take photographs of the property and on the same or next day Mr Mahoney and Mr Stimpson attended 21 Dennison Street Gloucester advising that Council has had a complaint.

During the first meeting Mr Mahoney did not deny that the complainant was persons interested in the Harvey World Travel.

No doubt an analysis of the Councils file in respect of the property will clarify the identity of the complainant and the terms of the complainant.

It is further noteworthy that the work done on the lots 21 and 22 is, if Mr Gardner’s view of LEP 5:10(2) is correct the Council would be no doubt concerned to ascertain as to whether any development application complying with clause 5:10 was lodged by the owner of lots 21 and 22.

Similarly the work outside the toilets in Billabong Park should be analysed as to whether or not there is a necessity for development application as suggested by Mr Gardner’s view of the LEP.

As to matters in respect of the lane way built over lots 21 and 22 it is clear that Council has attached its public lighting to the fabric of the property.

Heatscape knows of no permission given by the openers of the property.

Should Council be in possession of any such permission please let us have an advice of the precise nature of such permission. In the event the permission is in writing please let us have a copy of such writing.

In the event that there is no extant permission please inform us as to any proposal for the granting of such permission or the terms of the removal of such lighting.

As to the recently constructed concrete pathway on lots 21 and 22 Heatscape advised that the construction method adopted by Council results in there being water coming onto the property whereby damage to the property occurs.

Please let us have details of the propose remediation of this concrete path and the blue metal immediately adjacent to the pathway which is on the lots 21 and 22 which blue metal has been spread onto the property.

In light of that which is said, the DEP 5.1 we propose that there be a meeting between Heatscape and Council in which meeting an endeavour be made to resolve all differences between Heatscape and Council noting that the question of colour has been all but put to bed by Mr Smith

Yours Faithfully

Heatscape Pty Limited

48. The letter was unsigned.

Heatscape Sought Leave to Adduce New Evidence

49. In the court below, there was uncontroverted evidence from Mr Charman that the original sash window that was removed and replaced by Heatscape was in poor condition. There was also, as described above, photographs of the new window taken by the council on 11 May and 8 June 2012, the quality of which was poor but adequate.

50. Heatscape sought, therefore, leave to tender different photographs of what was purportedly the new window, showing its location on the external wall of a building and in what appeared to be a laneway. The photographs also purported to demonstrate the dilapidated condition of the external wall where the window was located. The tender was in respect of both the appeal against conviction and the appeal against sentence.

51. It was not known who took the photographs, when they were taken, or even, critically, whether the premises and window the subject of the photos was the same as that the subject-matter of the appeal. The application was therefore refused (Heatscape Pty Ltd v Mahoney [2015] NSWLEC 126).

52. A subsequent application was then made by Heatscape to call a council officer to give oral evidence as to the contents of the photographs. This was also refused on the basis that no notice had been served on the council (as required by s 38(2) of the Appeal and Review Act) of Heatscape’s intention to seek the order (Heatscape at [42]).

The Appeal Against Conviction

Mr Mahoney’s Legal Authority to Issue the PIN

53. Prior to turning to the elements of the offence with which Heatscape has been charged, it is necessary to deal with several preliminary arguments raised by Heatscape challenging, in effect, the validity of the entire prosecution.

54. The first concerned the legal authority or the capacity of the prosecutor, Mr Max Mahoney, to commence the proceedings in the court below. In this regard, it is of interest to note that while the issue was obliquely raised below, when the prosecution case closed on 8 May 2014, there was no submission made at that juncture by Heatscape that a prima facie case had not been made out by reason of this issue. Rather, the issue was ventilated during the course of Heatscape’s defence.

55. At first instance, McCosker LCM summarised the evidence on this issue as follows:

A preliminary point was raised in the defence submissions as to the capacity for the prosecutor Max Mahoney to commence proceedings because there is no evidence that he had standing to institute proceedings. As the Environmental Planning and Assessment Act, 1979 provides for an offence against Section 76A should no consent be obtained before work was done to a prescribed building and that the Gloucester Local Council Environment Plan 2010 contains within its provisions exemptions from the operation of Section 76A then it follows that only an officer duly authorised by the Gloucester Shire Council may institute proceedings of the kind before this Court. If there is no evidence supportive of this point then the proceedings are nullity and they must be dismissed.

The prosecutor Max Mahoney did not appear before the Court. It was the evidence of Mr Stimson, a former employee of Gloucester Shire Council, that he did not know the current whereabouts of Mr Mahoney. The effect [of] Mr Stimson’s evidence on this point is that while he was employed as an officer of the Gloucester Shire Council both he and Mr Mahoney attended the subject premises for the purposes of making an inspection. I am of the view that a reasonable inference can be drawn from this evidence that Mr Mahoney was not a mere disinterested bystander and that he had more than a passing interest in the premises and that this interest was due to his position with the Council. Interestingly, when the prosecution evidence closed on 8 May 2014 there was no submissions made at that point that a prima facie case was not made out. As the prima facie test is an acknowledgment that the evidence before the court is capable of supporting the elements of the offence and nothing further advanced to detract from the evidence. Indeed, Mr Charman’s evidence of conversation with Mr Mahoney and the perceived reliance upon it in the defence case indicates to my mind an acknowledgment by the defendant itself of the authority of Mr Mahoney. The defence relied upon the conversation said to have taken place between Charman and Mahoney as the basis of absolution from liability under the Proudman and Damon principle. It is ironic that Mahoney’s authority is relied upon to assist the defence and then rejected by defence on another point.

56. On appeal, the question of the council’s capacity to commence the proceedings prompted the council to make an application for leave to rely on fresh evidence in the form of an affidavit from Mr Danny Green, the General Manager of Gloucester Shire Council.

57. No affidavit was proffered by Mr Mahoney, but this could not, contrary to Heatscape’s submission, give rise to any adverse inference drawn in conformity with the principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 296. This is because if for no other reason, it was neither necessary or required for him to do so.

58. The affidavit sought to demonstrate beyond any doubt that Mr Mahoney had the capacity to initiate the proceedings on behalf of the council. However, in light of a foreshadowed adjournment application by Heatscape on the basis that it required more time to reply to the contents of the affidavit, the application was abandoned by the council.

59. The council was correct to take this course given the legislative provisions governing a prosecutor’s capacity to issue a PIN and CAN.

60. Section 22 of the Fines Act 1996 (“Fines Act”) sets out who may issue a fine:

22 Persons who may issue and deal with penalty notices (appropriate officers)

(1)    A penalty notice may be issued by a person authorised by the statutory provision providing for the issue of the notice.

(2) For the purposes of this Part, the following are appropriate officers for a penalty notice:

(a)    a person so authorised to issue that kind of penalty notice,

(b)    a person who is:

(i) employed in the Office of State Revenue in the Department of Finance and Services, or whose services are made use of by that Office (whether by way of temporary hire arrangement, secondment or otherwise), and

(ii) authorised by, and subject to the control and direction of, the Commissioner for the purposes of this Part,

(c)    a person, or a member of a specified class of persons, specified in the regulations for that kind of penalty notice or for all penalty notices.

61. For the purpose of s 22 of the Fines Act, s 127A(1) of the EPAA provides that:

127A Penalty notices for certain offences

(1)    An authorised person may serve a penalty notice on a person if it appears to the authorised person that the person has committed an offence under this Act or the regulations, being an offence prescribed by the regulations.

62. Relevantly, for the purpose of s 22(2)(c) of the Fines Act and s 127A of the EPAA, cl 284(3)(c) of the Environmental Planning and Assessment Regulation 2000 (“EPA Regulation”) states that:

284 Penalty notice offences

(3) The following persons are declared to be authorised persons for the purposes of section 127A of the Act:

(a)    any person who is generally or specially authorised by the Minister to be an authorised person for those purposes,

(b)    any person (including a person employed in the Department) who is generally or specially authorised by the Secretary to be an authorised person for those purposes,

(c)    any person (including an employee of a council) who is generally or specially authorised by a council to be an authorised person for those purposes,

(d)    any police officer,

(e)    any authorised fire officer (being an authorised fire officer within the meaning of section 121ZC of the Act).

63. Schedule 5 of the EPA Regulation sets out the offences that constitute or are amenable to a PIN, which includes an offence pursuant to s 125 of the EPAA for a contravention of s 76A of that Act.

64. Section 172 of the Criminal Procedure Act 1986 (“CPA”) provides that in relation to CANs:

172 Commencement of proceedings by court attendance notice

(1)    Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division.

(2)    A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence.

(3)    A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State.

65. Sections 173 and 174 of the CPA further provides that:

173 Commencement of proceedings by police officer or public officer

If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division.

174 Commencement of private prosecutions

(1) If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division.

(2)    A registrar must not sign a court attendance notice if:

(a)    the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or

(b)    the registrar is of the opinion that the notice is not in the form required by or under this Act, or

(c) the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice.

(3)    If a registrar refuses to sign a court attendance notice proposed to be issued by any such person, the question of whether the court attendance notice is to be signed and issued is to be determined by the court on application by the person.

66. Section 14 of the CPA in turn states that:

14 Common informer

A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons.

67. Relevantly, the term “public officer” is defined in the Dictionary in s 3(1) of the CPA as:

public officer means any of the following persons, if acting in an official capacity:

…

(c) an employee of a council within the meaning of the Local Government Act 1993,

68. Further, s 3(3) of the CPA says:

In the absence of evidence to the contrary, a person specified in paragraphs (a)–(f) of the definition of public officer who purports to exercise a function as a public officer under this Act is presumed to be acting in an official capacity.

69. Finally, s 697 of the Local Government Act 1993 (“the LGA”) provides (emphasis added):

697 Formal matters

In any prosecution or other legal proceeding under this Act or any other Act instituted by or under the direction or on behalf or for the benefit of the council, proof is not, until evidence is given to the contrary, to be required of any of the following:

•    the incorporation of the council

•    the persons comprising the governing body of the council

•    the election or appointment of the mayor or any other councillor

•    the extent or boundaries of the area or of any ward

•    the fact that any particular place is within the area or within a ward

•    the appointment of the general manager or of any other employee of the council

•    any order to prosecute or the authority of the general manager or any employee of the council to prosecute

•    the presence of a quorum of the council at the passing of any resolution or the making of any decision or determination or the doing of any act

•    the fact that the defendant is or at any relevant time was the owner or occupier of any land in question

•    the fact that the defendant is or at any relevant time was the owner or in possession, control or charge of any animal or thing in question.

70. Tracing through the above statutory framework, it is, in my opinion, tolerably clear that Mr Mahoney had the legal authority to issue the PIN and to commence the proceedings.

71. As s 697 of the LGA makes plain, proof is not required of Mr Mahoney’s authority to prosecute until evidence is given to the contrary and none has ever been provided by Heatscape. Simply asserting, as Heatscape does, that “nobody knows who he is” (T44:3-4) is not, in my view, sufficient. The section is not limited in its application to the LGA but includes the EPAA, and any prosecutions instituted under it.

72. In response, Heatscape asked the Court to infer from the PIN that Mr Mahoney was either commencing the prosecution in his personal capacity or as an officer of the State Debt Recovery Office, and not under the direction, or on behalf of, the council, and that thereby, Mr Mahoney did not have the authority to prosecute the offence. Heatscape submitted that, because the PIN stated that the prosecutor was “Max Mahoney” and made no reference to the council, it was open to the Court to infer that the prosecution against Heatscape was, contrary to s 697 of the LGA, not instituted on behalf, or for the benefit, of the council, but was instead instituted by Mr Mahoney in his personal capacity under s 174 of the CPA. Alternatively, Heatscape submitted that, as the fine was “payable to the State Debt Recovery Office”, it was open for the Court to infer that the prosecution was instituted on behalf, or for the benefit, of the State Debt Recovery Office.

73. I decline to draw either inference.

74. Whilst it is true that the PIN does not expressly refer to the council, the PIN must be read within its statutory context. In this context, and absent any cogent evidence to the contrary, it may be inferred that the issuer of the PIN is an employee of the council and has authority to prosecute an offence. Further, the PIN ought not be construed in isolation, but in conjunction with the CAN. This is because, upon a defendant electing (which is what Heatscape did) to have a matter dealt with by a court (s 76A(1)(a) of the Fines Act), pursuant to s 173 of the CPA, a “public officer … may commence the proceedings by issuing a court attendance notice and filing the notice”. This is precisely what occurred.

75. The CAN relevantly stated, “Prosecutor: Max Mahoney; Department/Organisation: Gloucester Shire Council”. In my opinion, the CAN is sufficient evidence enabling the inference to be drawn that Mr Mahoney was at all material times an employee of the council and had the authority to prosecute on behalf, or for the benefit, of it (see generally the discussion at Director-General of the Department of Environment, Climate Change and Water v Walker Corporation (No 2) [2011] NSWLEC 229 at [11]–[57], Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75; (2012) 186 LGERA 442 at [2]-[11] and Queanbeyan City Council v Kovacevic [2015] NSWLEC 152 at [27]). In other words, Mr Mahoney neither commenced the prosecution in his personal capacity nor on behalf of the State Debt Recovery Office.

76. Additionally, for the purpose of s 173 of the CPA, the term “public officer” is defined as including “an employee of the council” (s 3(1) of the CPA). And importantly, s 3(3) provides that, “in the absence of evidence to the contrary, a person specified in paragraphs (a)–(f) of the definition of public officer who purports to exercise a function as a public officer under this Act is presumed to be acting in an official capacity”. The section is consistent with the common law legal maxim ‘omnia praesumuntur rite esse acta’, also known as the presumption of regularity (Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 per McHugh JA at 164). Thus, the operation of s 3(3) of the CPA presents as a formidable barrier, in the absence of any evidence to the contrary, to the Court finding that Mr Mahoney instituted the proceedings in his personal capacity.

77. On the contrary, the inference Heatscape invites the Court to draw is inconsistent with the evidence before it. First, the CAN states, under the heading “Details of the Prosecutor”, that Mr Mahoney’s department or organisation is “Gloucester Shire Council”.

78. Second, the letter sent by Heatscape to the council on 11 June 2012, accepted that both Mr Mahoney and Mr Stimson were council employees:

It is apparent that Councils concern, as expressed by Mr Mahoney, is focussed on the street front to Church Street.

This arises from Mr Mahoney’s advice on site that “…We [meaning the council] do not care what you do in the lane way [meaning the wall along the boundary of lots 21 and 22 and the wall of the property within the boundary of lot 18] or inside the building [meaning the property]….” (“the Councils representation”).

79. Third, the unchallenged evidence of Mr Stimson indicates that Mr Mahoney was in Mr Stimson’s company during the site visits to the premises. The obvious inference to be drawn is that both men were present on council business and were therefore council employees.

80. Fourth, Mr Charman (called by Heatscape as its witness) gave the following evidence (T69:18-19):

Q.    During the course of you painting in the period of May to June, did you have a conversation with Mr Max Marnie of the council?

A.    Yes.

81. I therefore find that Mr Mahoney was authorised to issue the PIN and to commence the proceedings. That Mr Mahoney has since ceased to be an employee of the council (on 15 May 2015) is irrelevant for the purpose of this appeal. The prosecution, and in turn this appeal, continue uninterrupted (Corbyn v Walker Corporation at [2]–[11]).

The Validity of the CAN

The Defect in the PIN Did Not Affect the Validity of the CAN

82. The second preliminary issue raised by Heatscape was whether the CAN was invalid because:

1. first, it was infected with the duplicity tainting the PIN;

2. second, the court below erred in ordering the council to make an election; and

3. third, because the CAN gave the wrong date for the commission of the offence. Although Heatscape appeared to abandon this ground in its written submission, because of the itinerant manner in which the appeal was conducted and in case the manner in which Heatscape dealt with the issue both in the court below and on appeal becomes relevant to the question of costs, as a matter of prudence, I have proceeded to nevertheless address it.

83. Turning first to the asserted duplicity of the PIN infecting the CAN, as I understand it, the contention was to the effect that because the PIN was duplicitous, it was a nullity, and therefore, the CAN upon which it was premised was also a nullity.

84. Sections 20 and 23A of the Fines Act govern the issuing of PINs and the ability of a person to elect to have the matter the subject of the PIN dealt with by a court. They relevantly state:

20 What is a penalty notice?

(1)    A penalty notice is a notice referred to in subsection (2) to the effect that the person to whom it is directed has committed a specified offence and that, if the person does not wish to have the matter dealt with by a court, the person may pay the specified amount for the offence to a specified person within a specified time.

(2)    A penalty notice for the purposes of this Act is:

(a)    a notice issued under any of the statutory provisions set out in Schedule 1, or

(b)    any similar notice issued under any statutory provision specified by the regulations for the purposes of this section, or

(c)    a notice issued under a statutory provision that declares the notice to be a penalty notice for the purposes of this Act, or

(d)    a notice that, at the time it was issued, was issued under a statutory provision referred to in paragraph (a), (b) or (c).

…

23A Person may elect to have matter dealt with by court

(1)    A person alleged to have committed or to be guilty of the offence to which a penalty notice relates:

(a)    has the right to elect to have the matter dealt with by a court instead of under the statutory provision providing for the issue of the penalty notice, and

(b)    may make that election:

(i)    in the manner specified in that statutory provision, or

(ii)    if no manner is specified in that statutory provision—in the manner specified in the penalty notice, or

(iii)    if no manner is specified in that statutory provision or in the penalty notice—in the manner specified by the regulations.

85. Importantly for present purposes, s 37 of the Fines Act provides that:

37 Matter to proceed

If a person duly elects, in accordance with this Part, to have the matter dealt with by a court, proceedings against the person in respect of the offence may be taken as if a penalty notice or penalty reminder notice had not been issued.

86. In other words, once the election referred to in s 23A of the Fines Act has been made, the PIN is, in effect, expunged from existence. It is, in my opinion, a complete answer to the argument that the duplicity of the PIN somehow infected the CAN. This is because, by operation of s 37, upon election there never was a PIN. There is no warrant, contrary to the submissions of Heatscape, for construing s 37 of the Fines Act other than in accordance with the ordinary meaning of its text.

87. Mr Dupree, on behalf of Heatscape, appeared, if I understood him correctly, to submit that no election had in fact been made because only if the PIN was valid (and it was not, because it was duplicitous) could a recipient be in a position to make an election as to whether he or she elects to contest the matter in court.

88. A not dissimilar argument was raised by a defendant in the decision of Ryde City Council v Pedras [2009] NSWCCA 248. In that case Harrison J opined as follows (at [73]):

…The effect of s 37 of the Fines Act is in my opinion such that the defendant's election to have the matter dealt with by the Local Court precludes him from raising the validity of the notice as a question of law for determination by this Court. It does not do so in a purely procedural way binding him as the result of his conduct in electing not to challenge the validity of the notice so that he is in effect estopped or prevented from doing so later. It precludes him from doing so because of what happened in the Local Court. The proceedings there were simply not related to or in any way dependent upon the form of the penalty infringement notice. The form or content or validity of the notice were not elements that made up any part of the proceedings or the issues called up for consideration or determination by the learned Magistrate. The defendant's appearance in response to the notice as a matter of practical reality is beyond dispute but was and now remains a matter of no consequence once the matter commenced to be heard and was dealt with by the Local Court. As the section makes clear, from that point on it was as if the notice had not been issued. …

89. While mere obiter dicta (the appeal was dismissed on other grounds), his Honour’s remarks are, with great respect, entirely apposite here and ought to be applied to reject Heatscape’s argument.

90. The views expressed by Harrison J are also consistent with various contextual indicators contained within the Fines Act that establish a mechanism by which a PIN may be challenged, especially having regard to the fact that the penalty notice provisions under the Fines Act constitute no more than an administrative procedure to deal with the commission of statutory offences as an alternative to the commencement of court proceedings (Environment Protection Authority v Djura [2012] NSWLEC 122 at [70]). A cursory examination of the two statutory regimes (the PIN and CAN) reveals that the procedures to issue a PIN and a CAN are wholly separate and independent of one another.

91. Section 22(1) of the Fines Act authorises the issuing of a PIN by an authorised officer. Upon receipt of a PIN, the Fines Act contemplates a defendant responding in a number of ways. These include seeking an internal review (see Div 2A), paying the full amount specified in the PIN (s 23), electing to contest the PIN (s 23A), or failing to respond to the PIN (see Divs 3 and 4). An internal review can result in the PIN being confirmed or withdrawn (s 24E of the Fines Act). Paying the full amount specified in the PIN will finalise the matter and “no further liability” will arise (s 23(2) of the Fines Act). Electing to contest a fine will preclude any further action being taken under the Fines Act until a court has determined the matter. This is apparent from s 23A(1)(a) which provides for the matter to be “dealt with by a court instead of under the statutory regime” established by the Fines Act. Further, ss 24I and 42(1)(e) reveal that the Fines Act ceases to operate following an election under s 23A. Finally, failing to respond in one of the ways specified above will trigger the enforcement mechanisms in the Fines Act contained in Divs 3 and 4, commencing with a Penalty Reminder Notice (Div 3 of the Fines Act) and concluding with a Penalty Notice Enforcement Order made by the Commissioner of Fines Administration (Div 4).

92. It is therefore apparent that where a PIN has been issued (and confirmed, if internal review was sought), the procedures contained in the Fines Act are capable of finalising the matter only where the matter is uncontested. The Fines Act provides a procedure for the expedited handling of uncontested prosecutions, ensuring that the finite resources of the prosecution are not needlessly expended (Djura at [70]).

93. By contrast, when a PIN is contested, the challenge proceeds in accordance with the procedure contained in the CPA, and not the Fines Act. Section 23A of the Fines Act only establishes the right to elect to have the matter dealt with by a court, it does not invest any curial jurisdiction.

94. The CPA prescribes the procedures to initiate proceedings. Chapter 4 of the CPA is headed “Summary Procedure”. A prosecution is commenced by issuing and filing a CAN (s 172(1) of the CPA). It is worthwhile noting that the only condition precedent for issuing and filing a CAN is “if the person has committed or is suspected of having committed an offence” (s 172(2) of the CPA). Importantly, there is no requirement that a PIN must be issued prior to the issuing of a CAN.

95. Proceedings are commenced under s 173 of the CPA when a public officer, which includes an employee of a council, issues a CAN and files it in accordance with Div 1 of Pt 2 of Ch 4 of the CPA. Three aspects of the procedure under the CPA should be noted. First, the only way to commence court proceedings (and thereby have the matter dealt with by a court) is to follow the procedure set out in the CPA. Second, it is clear that a PIN is not required for a valid CAN to be issued. Indeed, it is open for a council officer to bypass the procedure contained in the Fines Act, and simply commence proceedings pursuant to the CPA. Third, the phrase “the officer may commence the proceedings” in s 173 indicates that the commencement of criminal proceedings is discretionary. It is not the case that, upon a defendant electing to have a matter dealt with by a court, that a council is bound to issue and file a CAN, rather, a failure to commence the proceedings within the time limit stipulated for summary proceedings contained in s 179 of the CPA will bar prosecution.

96. It would therefore appear that the procedure contained in the Fines Act dealing with uncontested PINs, and the procedure contained in the CPA dealing with contested PINs, are intended to be wholly separate notwithstanding that they arise from the same allegedly unlawful conduct.

97. Finally, the following observations may be made in respect of the election process. First, from the statutory regime prescribed by the Fines Act, it is apparent that the only method of contesting a PIN is by making an election under s 23A(1)(a). This is because the option is to elect that a matter is to be “dealt with by a court instead of under the statutory regime” (emphasis added). Second, and following on from the first observation, it is apparent that (absent a withdrawal or annulment identified in an internal review or application to the Commissioner of Fines Administration) any error which a defendant identifies in a PIN may only be challenged by electing to contest the PIN. Third, once the election is made, assuming a public officer has issued a CAN, s 37 of the Fines Act operates.

98. Accordingly, both the election and the issuing of the CAN are conditions precedent to the operation of s 37 of the Fines Act. It therefore follows that because a court deals only with the CAN, any errors identified with the PIN are of no consequence.

99. In the current proceedings, Heatscape has claimed that there are deficiencies with the PIN rendering it invalid. However, for the reasons given above, even assuming that there were deficiencies, these were, upon its election to contest the charges in court, rendered immaterial.

100. The only operative deficiencies were those affecting the CAN. On 5 July 2013, McCosker LCM held that the CAN was duplicitous. The application by Heatscape that the proceedings be dismissed as a consequence of the duplicity was refused, and pursuant to s 16(2) of the CPA, McCosker LCM ordered that the council elect which activity was to be the sole subject of the proceedings. The council subsequently made the election to prosecute the replacement of the window.

101. For these reasons, the CAN was not invalid by reason of any defect in the PIN.

The Challenge to the Order Requiring the Council to Elect Must Fail

102. There are three reasons why the challenge by Heatscape to the order made by McCosker LCM requiring, upon his finding of duplicity in the CAN, the council to elect must fail. First, because any challenge to the order required leave and none has been sought. Second, because any challenge to the order is now time barred. Third, because the order was, in my opinion, correct. Each is dealt with in turn.

103. The order by McCosker LCM concerning the election was the subject of a separate interlocutory application by Heatscape and a separate judgment by his Honour. The proceedings were specifically adjourned to deal with the challenge to the CAN on the grounds of duplicity.

104. The subject matter of this appeal is the conviction and sentence by the court below, and neither the finding by McCosker LCM that the CAN was duplicitous nor the order requiring that the council elect, were the subject of an appeal.

105. The appropriate jurisdiction of the Court to hear challenges to an order made by the Local Court in these circumstances is Class 7, conferred by s 21B of the Land and Environment Court Act 1979 (“LEC Act”), which provides that:

21B Class 7—other appeals relating to environmental offences

The Court has jurisdiction (referred to in this Act as “Class 7” of its jurisdiction) to hear and dispose of appeals under section 32 or 43 of the Crimes (Appeal and Review) Act 2001.

106. Relevantly Section 32(2)(b) of the Appeal and Review Act states:

(2)    Any person against whom:

…

(b)    an interlocutory order has been made by the Local Court in relation to the person in summary proceedings with respect to an environmental offence, may appeal to the Land and Environment Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Land and Environment Court.

107. Further, s 32(4)(b) of the LEC Act stipulates that “an application for leave to appeal must be made…in the case of an order referred to in subsection (2), within 28 days after the relevant order is made.”

108. An extension of time for late applications is provided for in s 33(1)(b), which relevantly states as follows:

33 Late applications for leave to appeal

(1)    An appeal to the Land and Environment Court may be made:

…

(b) by any person by whom an application for leave to appeal could be made under section 32, but for section 32(4), but only by leave of the Land and Environment Court.

(2)    An application for leave to appeal must be made within 3 months after the relevant conviction, sentence or order is made or imposed.

109. Because Heatscape is challenging an interlocutory order of the Local Court Heatscape required leave of the Court. None has been sought by it.

110. Further, any application to challenge the interlocutory order was required to be made within 28 days of the date upon which it was made on 5 July 2013. It was not. An extension of time is provided for, but any such application had to be made within three months after the relevant conviction. Again, none has been made by Heatscape.

111. Heatscape was convicted on 30 October 2014. Heatscape filed the summons commencing an appeal on 21 November 2014. The summons identifies the appeal as “an appeal within Class 6 of the jurisdiction of the Land and Environment Court of New South Wales”, not Class 7.

112. No application for leave to extend the time within which to appeal against the interlocutory order has been properly made by Heatscape and it is now time barred from doing so.

113. True it is that appeal ground 8 in the summons filed on 21 November 2014 raised the issue, but this did not, by itself, constitute either an application for leave to challenge the order made by the Local Court or an extension of time within which to do so.

114. His Honour gave the following reasons for not dismissing the CAN (at [24]-[27]):

24 The issue of technical defects in a CAN is dealt with under Section 16(2) of the Criminal Procedure Act 1986. Harrison J in Altranesi at paragraph 31 commented that despite a CAN appearing to be duplicitous (Patently as it was in that case as opposed to latently in this case) “The Magistrate had an implied power to direct the furnishing of particulars and require the prosecution to elect to charge the appellant with a single false statement to the exclusion of any others or amend the information and lay one charge in respect of each alleged false statement”.

25 I stress that I do not see the indictment set out in the CAN to be defective as to form as it conforms with Section 175 of the Criminal Procedure Act, 1986 and the construction of Section 76A of the Environmental Planning and Assessment Act, 1979 but I do find that it is defective due to its uncertainty for the reasons set out above.

26 Being mindful of the purpose and intent of Section 16(2) of the Criminal Procedure Act 1986 and I am satisfied that the uncertainty which I have identified in these proceedings can be cured by requiring the prosecution to elect the type of work that it seeks to rely upon as constituting the breach of Section 76A of the Environmental Planning and Assessment Act, 1979. I do not see this as posing any onerous or mischievous difficulty for the defendant as the basis of the proceedings has been the subject of ongoing discussions between the parties for in excess of 12 months and the particulars of the prosecutor’s claims should be well known to the defendant as an order was made by this Court on 26 September, 2012 that the prosecution serve copies of the statements and other materials upon which it relied on the defence by 23 November, 2012. To my mind there is no disadvantage to the defendant. Indeed, the order dated 26 September, 2012 was by consent an could not otherwise have been made as this matter does not agitate the provisions of Section 183 of the Criminal Procedure Act, 1986.

27   For these reasons, the objection to the validity of the Court Attendance Notice is dismissed and the prosecutor is to elect which activity is to be the sole subject of these proceedings.

115. Sections 16(2) and 175 of the CPA state as follows:

16 Certain defects do not affect indictment

(2)    No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of:

(a)    any alleged defect in it in substance or in form, or

(b)    any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.

…

175 Form of court attendance notice

(1)    A court attendance notice must be in writing and be in the form prescribed by the rules.

(2)    The rules may prescribe one or more forms of court attendance notice.

(3)    A court attendance notice must do the following:

(a)    describe the offence,

(b)    briefly state the particulars of the alleged offence,

(c)    contain the name of the prosecutor,

(d)    require the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail,

(e)    state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person.

(4)   The rules may prescribe additional matters to be included in court attendance notices.

(5)    A court attendance notice may describe an offence, act or other thing in a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment.

116. Having regard to s 16(2) of the CPA and the circumstances of the case, in my opinion, McCosker LCM correctly refused to dismiss the CAN. Even in the absence of s 16(2) of the CPA, a finding of duplicity does not oblige a court to dismiss the initiating process in its entirety (see Environment Protection Authority v Riverina (Australia) Pty Ltd [2014] NSWLEC 190 at [75] and the authorities referred to thereat, albeit in the context of criminal proceedings commenced by summons). As the subsequent proceedings on 8 May 2014 demonstrated, Heatscape was not disadvantaged by the election made by the council.

The CAN Was Not Defective Because the Date of the Commission of the Offence Was Incorrect

117. The final attack on the validity of the CAN made by Heatscape was on the basis that it incorrectly stated the date upon which the offence was committed. The evidence in the court below established that the offence was committed sometime between 11 May and 1 June 2012, that is to say, before the particularised date of 20 June 2012. The issue was agitated before McCosker LCM, who held that time was not an essential factual ingredient of the offence, and therefore, dismissed the argument. With great respect, his Honour was correct to do so.

118. Section 16(1)(g) of the CPA provides:

16 Certain defects do not affect indictment

(1)    An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds:

…

(g)    except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly,

119. It has been held that time is not an essential factual ingredient of offences against ss 125(1) and 76A(1)(a) of the EPAA (see Kari & Ghossayn Pty Ltd at [10] per Preston J and the cases cited thereat). Accordingly, the defect asserted did not cause the CAN to be bad, insufficient, void, erroneous or defective.

120. In any event, the Court has the power, even on appeal in Class 6 of its jurisdiction, to amend an indictment (which includes a CAN), even after its presentation, pursuant to ss 20 and 21(1) of the CPA. These sections apply to a CAN commencing criminal proceedings in the Local Court (s 15 of the CPA). The Court has power to make such an amendment under s 68(1) of the LEC Act and Pt 10 r 1 of the Land and Environment Court Rules 2007 (“the LEC Rules”). The Court may also exercise on appeal against conviction from the Local Court the power the Local Court itself had to amend the CAN (s 49(2) of the Appeal and Review Act).

223. This latter statement was plainly correct. The window was not, as the evidence of Mr Stimson and the photographs demonstrate, an internal window and neither was the deteriorated frame an internal window frame.

224. Finally, Heatscape cannot rely upon cl 2.53(b) of Pt 2 of the Exempt and Complying Development SEPP because the replacement of an external window was, for the reasons given above, “constructed or installed on or…in a heritage conservation area” (see the definition of “heritage conservation area” in cl 1.5 of the Exempt and Complying Development SEPP, which in turn picks up the definition of that term in the GLEP).

225. Accordingly, I find beyond reasonable doubt that the development was not exempt development under s 76 of the EPAA either pursuant to the GLEP or the Exempt and Complying Development SEPP.

Summary: Heatscape is Guilty of the Offence as Charged

226. The development is not exempt development and therefore required development consent. There having been none granted by the council, I find that the elements of the offence are proven beyond reasonable doubt and that Heatscape is guilty of the offence as charged.

The Appeal Against Sentence

Sentencing Principles

227. A basic principle of sentencing law is that the sentence imposed for an offence must reflect, and be proportionate to, the objective circumstances of the offence and the personal or subjective circumstances of the offender (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).

228. The instinctive synthesis method is the correct method of sentencing. The Court identifies all the factors relevant to the sentence and weighs their significance to arrive at an appropriate sentence (Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26] and [29] and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]–[39], [50]–[84] and [136]–[139]).

229. Section 3A of the Crimes (Sentencing Procedure) Act1999 (“the CSPA”) sets out the purposes of sentencing an offender:

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows:

(a)   to ensure that the offender is adequately punished for the offence,

(b)   to prevent crime by deterring the offender and other persons from committing similar offences,

(c)   to protect the community from the offender,

(d)   to promote the rehabilitation of the offender,

(e)   to make the offender accountable for his or her actions,

(f)   to denounce the conduct of the offender,

(g)   to recognise the harm done to the victim of the crime and the community.

230. In addition, s 21A of the CSPA identifies the matters that the Court must take into account when determining the appropriate sentence, including factors in aggravation under s 21A(2), and factors in mitigation under s 21A(3).

231. The prosecutor carries the onus of proving beyond reasonable doubt any aggravating factors for the purpose of sentencing (Gore v The Queen [2010] NSWCCA 330 at [27] and [105] and R v Wickham [2004] NSWCCA 193 at [26]). For mitigating factors, the onus of proof lies upon Heatscape on the balance of probabilities (Wickham at [26] and R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]).

232. In determining an appropriate sentence, the Court considers the objective and subjective circumstances of the offence in the context of the relevant legislative framework (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 and Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [42]). In this regard the Court has had regard to the objects of the EPAA as set out in s 5 of that Act.

233. The legislative scheme enshrined in the EPAA requires that the integrity of the system of planning is not subverted, irrespective of any actual environmental harm occasioned by a given offence (Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [46] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [104]-[105].

Objective Circumstances of the Offence

234. The primary factor the Court must consider in determining an appropriate sentence is the objective gravity or seriousness of the offence. The circumstances to which the Court may have regard include (Bentley at [163]; Gittany at [110] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [48]):

1. the nature of the offence;

2. the maximum penalty for the offence;

3. the harm caused to the environment by the commission of the offence;

4. Heatscape’s state of mind in committing the offence;

5. Heatscape’s reasons for committing the offence;

6. the foreseeability of the risk of harm to the environment by the commission of the offence;

7. the practical measures available to Heatscape to avoid harm to the environment; and

8. Heatscape’s control over the causes of harm to the environment.

Nature of the Offence

235. The offence of undertaking development without consent undermines the integrity of the system of planning and development controls enacted in the State. In short, "this system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development" (Scahill at [46]. See similar statements in Gittany at [104]-[105]; Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155 at [60]- [61]; Lane Cove Council v Wu [2011] NSWLEC 43 at [17]; Cessnock City Council v Bimbadgen Estate Pty Ltd(No 2) [2011] NSWLEC 140 at [62] and Hurstville City Council v Naumcevski [2011] NSWLEC 226 at [49]).

Maximum Penalty

236. The maximum penalty for an offence reflects the seriousness with which the Parliament views the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Plath at [67]).

237. The maximum penalty for this offence given Heatscape’s corporate status is $1,100,000 (s 126 of the EPAA).

Environmental Harm Caused by the Commission of the Offence

238. The environmental harm caused by the commission of an offence is a central consideration in determining the objective gravity of the offence. The concept of harm in the context of environmental offences is broad (Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[147]).

239. Having said this, with the exception of the harm caused to the integrity of the planning system in New South Wales, it must be acknowledged that the harm caused by the commission of the offence was minimal, particularly given the dilapidated state of the window.

Heatscape’s State of Mind in Committing the Offence

240. The offence is one of strict liability which means that mens rea is not an element of the offence. However, the state of mind of an offender at the time of committing an offence is a relevant consideration when imposing a sentence.

241. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one committed accidentally (Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [42]-[43] and Gittany at [123]).

242. Heatscape made two submissions as to its state of mind. First, that the council officers had made representations to Heatscape that all the council was concerned about was the street facing façade of the building and that Heatscape was free to undertake works on the side of the premises facing the lane without development consent. Heatscape sought to establish this fact based on the oral evidence given by Mr Charman, and the letter dated 11 June 2012, where the representation made by Mr Mahoney to Mr Charman was repeated. Second, Heatscape submitted that it had carried out the work in reliance on legal advice given to it that no consent was required.

243. As the evidence establishes, Mr Charman was employed by Heatscape to paint the premises. However, there was no evidence that Mr Charman had any involvement with the work the subject of the charge. The oral evidence of Mr Charman was that Mr Mahoney had said that he was not concerned about the side of the building. But the overwhelming inference to be drawn from the evidence is that the representation amounted to no more than permission to continue painting (T68:35-69:22), and not that Heatscape was permitted to undertake any unidentified future work, such as replacing the sash window. It was not a “nod and a wink”, as suggested by Heatscape (T150:125), to carry out any works in the laneway absent development consent. On Heatscape’s logic, the entire external side wall could have been demolished by it without the need for development consent.

244. Although the letter dated 11 June 2012 was relied upon in support of Heatscape’s understanding of the conversation between Mr Mahoney and Mr Charman, I place almost no weight on it for this purpose because, although admitted into evidence without objection, it is based on a second-hand hearsay representation, it is unsigned, and none of the “many witnesses” (other than Mr Charman) have been named or gave evidence corroborating the interpretation ascribed by Heatscape to the representation referred to therein.

245. The letter of 11 June 2012 is also not cogent evidence that Heatscape was provided with legal advice prior to the commission of the offence which it relied upon to its detriment. The letter does no more than express a post facto opinion that consent was not required. The provider of the so-called legal advice was not, for instance, identified.

246. Nonetheless, the council’s assertion that the commission of the offence was deliberate has not been demonstrated to the requisite standard on the evidence before the Court. Rather, the preponderance of the evidence suggests that Heatscape either did not turn its mind to whether the replacement of the window required development consent or believed that none was required. Importantly, it does not reveal that Heatscape knew that development consent was required but proceeded anyway without it in replacing the window.

247. Nor is the evidence sufficient to demonstrate either recklessness or negligence on the part of Heatscape.

248. In other words, the state of mind of Heatscape at the time of the commission of the offence is unknown and cannot act to augment the objective seriousness of the offence.

Heatscape’s Reasons for Committing the Offence

249. The objective seriousness of an offence may also be measured by reference to the reasons for its commission (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366; Gittany at [140]-[141]; Bentley at [237], [246]-[247] and Rae at [47]). For example, an offence committed for financial gain increases its objective seriousness (CSPA s 21A(2)(o)).

250. In the present case, there is no evidence that the offence was committed for any reason that would increase its objective seriousness. Rather, it appears (see the 11 June 2012 letter) that Heatscape replaced the window in order to rectify its dilapidated state and as a safety and security measure.

The Foreseeability of the Risk of Harm to the Environment

251. The extent to which Heatscape could have reasonably foreseen the risk of harm to the environment caused by the commission of the offence is a relevant objective circumstance in determining an appropriate sentence (Camilleri's Stock Feeds at 700 and Plath at [48]).

252. It was foreseeable that harm to the planning system, and in particular to the specific heritage conservation regime, would result if development was undertaken without the necessary consent or, at the very least, without ascertaining if such development was required.

The Practical Measures Available to Heatscape to Avoid Harm to the Environment

253. It is quite clear that the harm could have readily been avoided by Heatscape obtaining a development consent from the council and carrying out the work subject to that consent or, again at the very least, ascertaining whether development consent was required.

Control Over the Causes of the Harm

254. Heatscape had complete control over the causes of the harm to the environment insofar as I have found above that it effected the removal of the sash window and the installation of its replacement. The admission by Heatscape that it was the registered proprietor of the premises, the contents of the letter dated 11 June 2012 and the evidence of Mr Stimson permit me to draw, albeit by inference, this conclusion.

Conclusion on Objective Gravity

255. Having regard to all of the factors discussed above, I find that the objective seriousness of the commission of the offence falls at the lower end of the spectrum.

Subjective Considerations

256. As stated above, within the limits set by the objective seriousness of the offence, the Court must take into account subjective factors relevant to Heatscape contained in s 21A of the CSPA. This includes the Court taking into account any mitigating factors that are personal to Heatscape (Rae at [55]; Gittany at [144] and s 21A(3) of the CSPA). And any aggravating factors (s 21A(2) of the CSPA).

257. The commission of the offence is not marked by any aggravating factors that the Court is required to take into account.

258. The subjective mitigating factors relevant to the determination of appropriate sentences in the present appeal (see s 21A(3) of the CSPA) are limited (a matter that was acknowledged in the court below: T193:03-10). They are as follows:

1. that the harm caused by the commission of the offence was not substantial (s 21A(3)(a) of the CSPA); and

2. that Heatscape does not have a record of previous convictions for environmental offences (s 21A(3)(e) of the CSPA).

259. Given the overlap, it is convenient to deal with the likelihood of Heatscape re-offending (s 21A(3)(g) of the CSPA) below in the discussion concerning deterrence.

260. Importantly, however, Heatscape was unable, on the evidence before the Court, to take any benefit by way of reduction in penalty by reason of:

1. its good character (s 21A(3)(f) of the CSPA);

2. an early, or indeed any, plea of guilty (ss 21A(3)(k) and 22 of the CSPA);

3. a demonstration of remorse (s 21A(3)(i) of the CSPA); or

4. a demonstration of assistance provided to the relevant regulatory authority, in particular, the council, in the prosecution of the proceedings (ss 21A(3)(m) and 23 of the CSPA).

Conclusion on Subjective Circumstances

261. The subjective circumstances identified above do not operate to mitigate the penalty to a substantial degree. Nevertheless, taking them into account, I would discount the penalty to be imposed upon Heatscape by no more than 5%.

Deterrence, Denunciation and Retribution

262. As noted above, the Court is required to take into account the purposes of sentencing, which include both specific and general deterrence (s 3A(b) of the CSPA).

263. General deterrence is important to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences. In the specific circumstances of this case, the purpose is to encourage those engaging in development, to ensure that they have the necessary approvals for development works, however minor, especially in areas that have been set aside for their conservation due to their particular significance and values.

264. Having said this, in my view, the need for specific deterrence in respect of the activities of Heatscape is limited.

265. Finally, it should be noted that the purposes of retribution and denunciation are also relevant. The Court, by its sentence, must denounce the offence and there must also be an element of retribution for their commission.

Evenhandedness

266. A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offence in question (Gittany at [179]-[182] and Rae at [69]). The proper approach is for the Court to look at whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence that merely forms part of that range (Gittany at [182]). Of course, care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion, given the wide divergence of facts and circumstances leading to the imposition of specific penalties (Axer at 365; Cabonne Shire Council at 312 and Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54]).

267. In determining the appropriate sentence, I have considered a number of cases where a building or structure, being either a heritage item or located within a heritage conservation area, has been altered or demolished without, or contrary to, development consent (see Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132, City of Sydney v Schwartz [2003] NSWLEC 261, Carlino v Leichhardt Municipal Council [2005] NSWLEC 198; (2005) 144 LGERA 235, Ku-Ring-Gai Council v Vinci [2007] NSWLEC 283, Woollahra Municipal Council v JPS Development & Construction Pty Limited [2007] NSWLEC 595, Willoughby City Council v BCPD Pty Ltd [2010] NSWLEC 163, Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170, Willoughby City Council v Finlay (No 2) [2010] NSWLEC 233, Council of the City of Sydney v Trico Constructions Pty Ltd [2015] NSWLEC 56, Cowra Shire Council v Fuller [2015] NSWLEC 13, Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79, and Council of the City of Sydney v Adams [2015] NSWLEC 206).

268. In almost all of these cases, however, the harm to the environment was much greater than that caused by the commission of the offence in the present case.

269. Heatscape submitted that the more apt comparison was to the fines levied in respect of PINs. I disagree. Upon the election by Heatscape to challenge the proceedings in court, the PIN, and its stipulated fine, cease to be of relevance.

Appropriate Penalty to be Imposed

270. I consider that a fine is the most appropriate penalty to be imposed on Heatscape. Having regard to the objective seriousness of the offence and the subjective features of Heatscape, and applying an instinctive synthesis to all of the facts and circumstances relevant to the exercise of my sentencing discretion, I would impose a penalty by way of a fine in the amount of $20,000 on Heatscape, which, applying a discount of 5%, results in a fine of $19,000.

271. Upon rehearing, it is open to the Court to increase or decrease the fine imposed at first instance. However, the Court will not impose a more severe penalty without first warning the appellant that there is the possibility of a more severe penalty. This warning permits the appellant the opportunity to consider whether or not to apply for leave to withdraw the appeal against the sentence (Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 295).

272. No such warning was given to Heatscape and as a consequence it is not appropriate to increase the fine awarded to Heatscape. This conclusion is, subject to the matters discussed immediately below, sufficient to dismiss the appeal against sentence.

Whether an Order Under ss 10 or 10A of the CSPA Ought to be Made

273. Heatscape submitted that an order under either ss 10 or 10A of the CSPA should be made.

274. Sections 10 and 10A of the CSPA state:

10 Dismissal of charges and conditional discharge of offender

(1)    Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:

(a)    an order directing that the relevant charge be dismissed,

(b)    an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,

(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

…

(3)    In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

10A Conviction with no other penalty

(1)    A court that convicts an offender may dispose of the proceedings without imposing any other penalty…

275. The mandatory factors to which the Court must have regard, set out in s 10(3), are not exhaustive (R v Paris [2001] NSWCCA 83 at [42]) and are disjunctive in their operation (Paris at [42]).

276. An order under s 10 can apply to offences that are not considered trivial in nature (R v Piccin (No 2) [2001] NSWCCA 323 at [25]; Chin v Ryde City Council [2004] NSWCCA 167; (2004) 133 LGERA 312 at [38] and Terrey at [114]). An order under s 10 (or its former statutory incarnation, s 556A of the Crimes Act 1900) is usually "rare" in the case of environmental offences, including offences concerning a breach of planning laws (Hunter Water Board v State Rail Authority of New South Wales (No 2) (1992) 75 LGRA 22 at 23; Environment Protection Authority v Attard [2000] NSWCCA 242 at [5]; Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 at [165]-[167]; Menai Excavations at [35]; Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 3) [2005] NSWLEC 423 at [24]; Holroyd City Council v El-Khouri [2008] NSWLEC 83 at [34] and Terrey at [109]).

277. Having said this, the environmental and planning nature of the offence is no bar to the application of s 10 of the CSPA (El-Khouri at [34]; Gerondal at [47]-[51] and Parramatta City Council v Cheng [2010] NSWLEC 94 at [41]-[45]).

278. Nevertheless, the circumstances in which a s 10 order is appropriate are considered to be limited where the environmental offence is one of strict liability (Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [70]-[71] and Terrey at [110]).

279. But again, the fact that the offence in question is an offence of strict liability similarly does not preclude an order being made under the provision (Filipowski v Fratelli D'Amato Srl [2000] NSWLEC 50; (2000) 108 LGERA 88 at [139]; Thorneloe at [171]; Filipowski v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104 at [149]-[153] and Lavorato v The Queen [2012] NSWCCA 61; (2012) 82 NSWLR 568 at [126]).

280. I am of the opinion that it would not be appropriate to exercise my discretion under ss 10 or 10A of the CSPA in favour of Heatscape.

281. Militating against the minor nature of the offence are the following factors:

1. it was wholly within Heatscape’s control to prevent the offence from occurring. This is not a case where there was nothing further that Heatscape could have done to avoid the occurrence of the offence. Had Heatscape obtained development consent, or at the very least enquired as to whether consent was needed, the commission of the offence could easily have been avoided;

2. although Heatscape submitted that it committed the offence due to a mistake as to the law based on the representation by Mr Mahoney to Mr Charman (in Environment Protection Authority v Fletcher [2001] NSWLEC 104; (2001) 114 LGERA 187, Sheahan J raised the possibility that, where the mistaken view of the law was induced by an official this may be a mitigating factor in determining an appropriate penalty), for the reasons disclosed above, I do not consider that the representation by Mr Mahoney to Mr Charman was to the effect that the window could be replaced without the need for development consent; and

3. Heatscape has made no expression of remorse or contrition for the commitment of the offence.

Costs

282. After lengthy oral submissions from the parties during the hearing (T158-171:17, 229:35-230:24 and 278:27-293:01), the Court initially indicated that it was minded to reserve the issue of the payment of costs in the court below and on appeal.

283. However, upon revisiting those submissions, and in light of Heatscape’s lack of success on the appeal, there is no reason why the Court ought not determine all outstanding issues of costs in this judgment. Having said this, as a matter of prudence and fairness to Heatscape, it should be given the opportunity of seeking an alternative costs order if it so desires. This is reflected in the final orders made by the Court.

Costs in the Local Court

284. Section 215 of the CPA empowered the court below to order, upon its conviction, Heatscape to pay the council’s just and reasonable professional costs. That provision states as follows:

215   When professional costs may be awarded to prosecutor

(1)   A court may at the end of summary proceedings order that the accused person pay the following costs to the registrar of the court, for payment to the prosecutor, if the accused person is convicted or an order is made against the accused person:

(a)   such professional costs as the court considers just and reasonable

(b)   (Repealed)

(1A)   The court may not order the accused person to pay professional costs referred to in subsection (1) (a) if the conviction or order concerned relates to an offence:

(a) for which a penalty notice, within the meaning of section 20 of the Fines Act 1996, has been issued, and

(b)   in respect of which the person has elected to have the matter dealt with by a court, and

(c)   in respect of which the person has lodged a written plea of guilty, in accordance with section 182, not later than 7 days before the date on which the person is required to first attend before the court.

(1B)   Subsection (1A) does not apply in relation to proceedings for an offence against the Work Health and Safety Act 2011 or the regulations under that Act.

(2)   (Repealed)

(3)   The order must specify the amount of costs payable.

(4) For the purposes of this section, an accused person is taken to have been convicted if an order is made under Division 4 of Part 3 of theChildren (Criminal Proceedings) Act 1987 or under section 10 of the Crimes (Sentencing Procedure) Act 1999. The order for costs may be in the order under the relevant section.

(5)   This section applies to all summary proceedings, including orders made in proceedings conducted in the absence of the accused person.

285. In the court below, by agreement between the parties, no evidence was tendered on the issue of costs, rather the matter proceeded with the parties handing up written submissions. Heatscape’s principal submission appeared to be directed to the question of apportionment, given that it had enjoyed success on the issue of the duplicity of the CAN.

286. Heatscape also asked the court below to take into consideration the absence of any fee agreement between counsel for the council and the firm of solicitors representing it. Similarly, Heatscape complained about a lack of a fee note from the solicitors for the council justifying a claim of $11,000 for legal fees. Ultimately, however, Heatscape went on to state that (T16:12-14):

So to summarise what I’ve been saying is that I don’t argue and argue against the quantum because there just doesn’t seem to be material available to me to do so.

287. In other words, Heatscape appeared to accept, subject to the specific matters it had brought to the lower court’s attention, the quantum of the costs sought by the council.

288. There is nothing to indicate that McCosker LCM did not take these matters into account. The court below heard competing submissions as to costs and determined that Heatscape should pay the council’s costs in the sum of $24,000 on a party-party basis. This was approximately $7,000 less than the amount of costs sought by the council.

289. This Court may, pursuant to s 49(2) of the Appeal and Review Act exercise any function that the Local Court could have exercised in the original proceedings below, including ordering costs. Accordingly, before this Court, Heatscape argued that even if it lost its appeal, the Court ought nevertheless revisit the costs order made below. This was on the basis that, first, there was no (or at the very least insufficient) evidence to warrant the conclusion that an award of costs was just and reasonable. And second, because Mr Mahoney was a “third party payer” pursuant to s 302A of the Legal Profession Act 2004 (“the LPA”), and therefore, Heatscape had, in any event, a right to have the costs awarded against it assessed rather than payable in a fixed sum.

290. Heatscape’s submissions in respect of the award of costs made against it in the Local Court appears to misconceive the nature of the discretion to be exercised. A determination that an award of costs is just and reasonable is not dependant upon the sufficiency of any evidence as to the quantum of costs sought. The court can examine the conduct of the parties during the proceedings, the relative success of the parties and any other relevant circumstances. McCosker LCM considered Heatscape’s submissions as to the strength of the evidence on the quantum of costs, the manner in which the proceedings were conducted, and the successes or otherwise of various interlocutory applications by the parties, in making his order.

291. Having regard to the submissions of the parties in this Court, the transcript in the court below, and the statement by Heatscape that it did not seek to “argue against quantum”, I have arrived at the same conclusion that McCosker LCM did. In other words, it is just and reasonable that Heatscape pay the council’s costs of the proceedings in the Local Court in the sum of $24,000.

292. Further, I do not understand how s 302A of the LPA assists Heatscape. The definition of a “third party payer” appears neither apposite nor applicable to Mr Mahoney. But even if I am wrong in reaching this conclusion, Heatscape’s submission ignores the edict contained in s 215(3) of the CPA that any order for costs “must specify the amount of costs payable”. The argument by Heatscape that the LGA overrides the CPA to this extent is not supported by any reasonable construction of either Act.

Costs of the Appeal

293. Similarly, notwithstanding Heatscape’s submissions to the contrary, there is no cogent reason why, given the wholesale success of the council before this Court, the council should not be awarded its costs of the appeal, including any costs associated with the withdrawal by it of its application to rely on fresh evidence (reserved by the Court at the time) - an application that was essentially caused by the manner in which Heatscape conducted its case the in court below, which did not permit the council to adduce this evidence at the time.

294. Unlike the costs order made in respect of the proceedings in the Local Court, however, it is not in dispute that these costs may be ordered as agreed or assessed.

Orders

295. For the reasons given above, the Court orders that:

1. the appeal against both conviction and sentence is dismissed;

2. the appellant is to pay the costs of the Local Court proceedings fixed in the sum of $24,000, unless within 14 days of the publication of these reasons either party seeks an alternative costs order;

3. the appellant is to pay the council’s costs of the appeal as agreed or assessed within 28 days either after an agreement as to the amount of costs payable or upon the issue of a final certificate of assessment of any such costs, whichever is the earlier, unless within 14 days of the publication of these reasons either party seeks an alternative costs order; and

4. the exhibits are to be returned.

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Decision last updated: 29 April 2016