Moseley v Queanbeyan-Palerang Regional Council

Case •

[2019] NSWCCA 42

•

01 March 2019

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Moseley v Queanbeyan-Palerang Regional Council [2019] NSWCCA 42
Hearing dates: 18 July 2018
Decision date: 01 March 2019
Before: Hoeben CJ at CL at [1]
R A Hulme J at [2]
Button J at [3]
Decision:

(1) Leave to extend time to submit the stated case is granted.
(2) Answer the questions in the stated case as follows:

 

Question 1: No (that is, there was no error in law in finding that the listed works were not ancillary to development that was permitted without consent).

 

Question 2: No.

 

Question 3: (i) No. (ii) Does not arise.

 Question 4: Inappropriate to answer.
Catchwords: ENVIRONMENTAL LAW – stated case – Criminal Appeal Act 1912 (NSW), s 5BA – asserted error of law in approach to purpose to the extent that it informs use of land – asserted reversal of onus –– no error of law established – one question inappropriate to answer as not pertaining to pure question of law – questions answered accordingly
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Appeal Act 1912 (NSW), s 5BA
Environmental Planning and Assessment Act 1979 (NSW)
Palerang Local Environment Plan 2014 (NSW)
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW)
Cases Cited: Abret Pty Limited v Wingecarribee Shire Council [2011] NSWCA 107
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400
Heatscape Pty Ltd v Mahoney No 2 [2016] NSWLEC 45
Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211
Moseley v Queanbeyan-Palerang Regional Council [2016] NSWLEC 165
Port Stephens Council v SS & LM Jonston Pty Ltd (2007) 152 LGERA 193; [2007] NSWLEC 30
R v Walsall Overseers (1878) 3 QBD 457
Ward v Williams (1955) 92 CLR 496
Texts Cited: J H Baker, An Introduction to English Legal History (4th ed, 2011, Oxford University Press)
Category:Principal judgment
Parties: Benjamin Moseley (Appellant)
Queanbeyan-Palerang Regional Council (Respondent)
Representation:

Counsel:
C Birch SC (Appellant)
I Hemmings SC/N Hammond (Respondent)

  Solicitors:
Jack C Herrald Solicitors (Appellant)
Bradley Allen Love (Respondent)
File Number(s): 2018/71783
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Land and Environment Court
Citation:
[2016] NSWLEC 165
Date of Decision:
21 December 2016
Before:
Pain J
File Number(s):
2016/227474

Judgment

  1. HOEBEN CJ at CL: I agree with the orders proposed by Button J and his Honour’s reasons.    

  2. R A HULME J: I agree with Button J.

  3. BUTTON J:

Introduction

  1. On 1 December 2017, Pain J of the Land and Environment Court submitted four questions in the form of a stated case for determination by this Court, pursuant to s 5BA of the Criminal Appeal Act 1912 (NSW) (“the CAA”). All of the questions submitted are said to be questions of law, in accordance with the mandate of the section.

  2. The questions were submitted in the context of her Honour, on 21 December 2016, having dismissed the majority of the particulars of an appeal against a conviction that had originally been entered against Mr Benjamin Moseley (the appellant) in the Local Court at Queanbeyan on 21 June 2016.

  3. The entirety of the provision that permits the stating of a case to this Court in those circumstances is as follows:

5BA Case stated from Land and Environment Court

(1) A Judge of the Land and Environment Court may submit any question of law arising on any appeal to the Land and Environment Court in its environmental offences appeals jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the Land and Environment Court as it thinks fit.

(2) At the request of a person who was the appellant in an appeal referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow.   

Leave to extend time?

  1. As the extract above shows, a time limit applies to the process, although it can be extended by this Court. The Queanbeyan-Palerang Regional Council (the respondent in these proceedings, and the prosecutor in the Local Court) provided detailed written submissions as to why leave to extend that time should not be granted. Emphasis was placed upon the delay on the part of the appellant in pursuing this procedure, in particular in the context of the overarching delay since proceedings were first commenced against him as long ago as June 2015.

  2. Those submissions have force. Nevertheless, because the matter was fully argued before us; featured extensive written and oral submissions; raises an important question about environmental law; and also raises at least one important question about the nature of a stated case, I consider that leave to extend time should be granted.

Background

  1. On or about 12 June 2015, the respondent issued the appellant with a penalty infringement notice for the sum of $1,500, alleging an offence described by the shorthand of “Development without development consent – individual”.

  2. It seems that the appellant failed to respond to that penalty notice within its time limit, and a penalty notice enforcement order was issued. Eventually, he made an annulment application to the Office of State Revenue, which was granted. After that, the hearing of the matter took place before Magistrate Antrum on 17 May 2016 in the Local Court at Queanbeyan.

  3. The amended statement of charge was as follows:

“That the defendant, Benjamin Moseley, did carry out development that, under the Palerang Local Environment Plan 2014 may only be carried out with development consent without having obtained development consent contrary to the provisions of ss. 76A and 125 of the Environmental Planning and Assessment Act 1979.”

  1. The offence was alleged to have taken place between 30 December 2014 and 12 June 2016. The original particulars of the statement of charge were as follows:

“[A] The construction of a track or driveway leading from the front gate to the area known as the “shed site” – approx. 2.5-3m wide and 35m long.

[B] The clearing and excavation to a depth of approx. 1.5m of a site for a proposed shed approx. 15m wide and 50m long with excavated materials levelled off and compacted to form a shed site.

[C] The pushing of spoil and other materials into 4 stockpiles with one stockpile being approx. 5m high and 10m wide.

[D] The construction of a creek crossing comprising concrete pipes in the bed of the creek covered with soil, rocks and excavated fill. The crossing was approx. 10m high, 15m in length and 4m wide at the top of the crossing.

[E] The construction of a track from the creek crossing to an area approx. 500m up a hillside.

[F] The excavation of an area of approx. 15m wide and 35m long to a depth of approx. one metre and then compacted to form a house site.

[G] The carrying out of earthworks associated with the construction of a dam approx. 15m wide and 20m long.”

  1. On 21 June 2016, the appellant was found guilty and convicted by his Honour, fined $15,000, and ordered to pay the respondent’s costs.

  2. The appellant appealed against both conviction and sentence to the Land and Environment Court, pursuant to s 31 of the Crimes (Appeal and Review) Act 2001 (NSW).

  3. On the appeal, the respondent did not press particular A, and accordingly it need not be discussed further.

  4. On 8 and 24 November 2016, that appeal was heard by Pain J in the Land and Environment Court. It was never disputed by the appellant that he had undertaken development by way of the creation of earthworks preparatory to undertaking certain construction on a rural property near the township of Royalla in New South Wales. Nor did he dispute that he had not obtained development consent from the respondent before commencing the development. His submission, however, was that, by way of careful analysis of various statutory instruments, one could see that the various particulars of development had been undertaken in various exculpatory circumstances.

  5. That last proposition was not accepted by the respondent. It did and does accept, however, that, as far as any exculpatory circumstances with regard to which the appellant had discharged the evidential burden of raising them sufficiently, the respondent as prosecutor was required to disprove them beyond reasonable doubt.

  6. On 21 December 2016, her Honour dismissed the appeal against conviction, finding that particulars B, C, D, E, and G had been proven. Particular F was found not to have been proven beyond reasonable doubt. It follows then that only particulars B, C, D, E, and G need to be discussed further in this judgment.

  7. On 9 May 2017, in a separate judgment, her Honour upheld the sentence appeal, and reduced the fine to $4,000.

  8. On 2 March 2018, as discussed above, the stated case was filed in this Court. Because it raises no question of law with regard to the sentence imposed on appeal, the sentence need not be analysed further.

Statutory structure

  1. Before turning to analyse the asserted questions of law in the stated case, it is necessary to set out in some detail the complicated interlocking structure of statutory instruments that contain the offence-creating provision, along with the various exculpatory circumstances upon which the appellant relied and relies.

  2. The following summary of my understanding is based upon the analysis contained in the judgment of her Honour, and which formed the basis of the explanation of the interlocking structure in the oral submissions before us of senior counsel for the respondent. That analysis of structure was not impugned by the appellant by way of any of the questions requested to be contained in the stated case. Later in this judgment, I explain why, in my opinion, recourse to the judgment of her Honour, in the circumstances of this case, is not inapposite. And in any event, this reference to the judgment is only to have the benefit of her Honour’s intimate knowledge of the relevant statutory structure, not to determine substantively the stated case. For all of those reasons, I consider that it is appropriate to use the judgment to inform the following.

New South Wales statutes

  1. The relevant provisions of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act), at the time the offence was said to have been committed, are the following:

  2. First, the overarching offence-creating provision, s 125 of the EPA Act, is as follows:

Part 6 Implementation and enforcement

…

Division 4 Offences

125 Offences against this Act and the regulations

(1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.

  1. Secondly, the specific offence-creating provision, s 76A of the EPA Act, is as follows:

76A Development that needs consent

(1) General

If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a) such a consent has been obtained and is in force, and

(b) the development is carried out in accordance with the consent and the instrument.

(2) For the purposes of subsection (1), development consent may be obtained:

(a) by the making of a determination by a consent authority to grant development consent, or

…

  1. Thirdly, there is the expansive definition in s 4 of the EPA Act of the element of “development” within s 76A:

Part 1 Preliminary

…

4 Definitions

(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

…

development means:

(a) the use of land, and

(b) the subdivision of land, and

(c) the erection of a building, and

(d) the carrying out of a work, and

(e) the demolition of a building or work, and

(f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,

but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.

…

  1. Fourthly, the definition of the element of an “environmental planning instrument” (an EPI) within the specific offence-creating provision, also located in s 4 of the EPA Act, is as follows:

environmental planning instrument means an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force.

...

  1. Fifthly, Part 4 of the EPA Act regulates the carrying out of development, identifying situations in which consent is and is not required under the Act:

Part 4 Development assessment

Division 1 Carrying out of development—the threefold classification

76 Development that does not need consent

(1) General

If an environmental planning instrument provides that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on land to which the provision applies.

Note. Environmental assessment of the development may nevertheless be required under Part 5.

(2) Exempt development

An environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development.

(3) If development is exempt development:

(a) the development may be carried out, in accordance with the instrument, on land to which the provision applies without the need for development consent, unless that land:

(i) is critical habitat, or

(ii) is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987), and

(b) Part 5 does not apply to the development.

A provision made under subsection (2) has no effect at any time during which the land is land to which paragraph (a) (i) or (ii) applies.

Palerang Local Environment Plan

  1. Sixthly, it will be recalled that the statement of charge alleged the carrying out of development that required development consent by way of the Palerang Local Environment Plan 2014 (NSW) (the PLEP), which is, of course, an EPI for the purposes of s 76 of the EPA Act. The numerous relevant portions of the PLEP are as follows:

2.3 Zone objectives and Land Use Table

(1) The Land Use Table at the end of this Part specifies for each zone:

(a) the objectives for development, and

(b) development that may be carried out without development consent, and

(c) development that may be carried out only with development consent, and

(d) development that is prohibited.

(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

(3) In the Land Use Table at the end of this Part:

(a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and

(b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.

(4) This clause is subject to the other provisions of this Plan.

…

[Emphasis added]

  1. Pursuant to the Land Use Table for Zone RU1 Primary Production (the relevant zone) in the PLEP, “extensive agriculture” is permitted without consent:

Land Use Table

…

Zone RU1 Primary Production

1 Objectives of zone

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To encourage diversity in primary industry enterprises and systems appropriate for the area.

• To minimise the fragmentation and alienation of resource lands.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To minimise the impact of any development on the natural environment.

• To ensure that development does not unreasonably increase the demand for public services or facilities.

2 Permitted without consent

Extensive agriculture; Home businesses; Home occupations

3 Permitted with consent

Airstrips; Animal boarding or training establishments; Aquaculture; Backpackers’ accommodation; Bed and breakfast accommodation; Biosolids treatment facilities; Building identification signs; Business identification signs; Caravan parks; Cellar door premises; Cemeteries; Community facilities; Crematoria; Depots; Dual occupancies; Dwelling houses; Eco-tourist facilities; Environmental facilities; Environmental protection works; Extractive industries; Farm buildings; Farm stay accommodation; Flood mitigation works; Forestry; Function centres; Garden centres; Helipads; Home-based child care; Home industries; Hotel or motel accommodation; Industrial training facilities; Information and education facilities; Intensive livestock agriculture; Intensive plant agriculture; Neighbourhood shops, Open cut mining; Places of public worship; Plant nurseries; Recreation areas; Recreation facilities (outdoor); Restaurants or cafes; Roads; Roadside stalls; Rural industries; Rural workers’ dwellings; Secondary dwellings; Service stations; Sewage treatment plants; Truck depots; Veterinary hospitals; Water recycling facilities; Water supply systems

4 Prohibited

Any development not specified in item 2 or 3

  1. “Agriculture” and “extensive agriculture” are defined in the PLEP as follows:

Dictionary

…

agriculture means any of the following:

(a) aquaculture,

(b) extensive agriculture,

(c) intensive livestock agriculture,

(d) intensive plant agriculture.

…

extensive agriculture means any of the following:

(a) the production of crops or fodder (including irrigated pasture and fodder crops) for commercial purposes,

(b) the grazing of livestock for commercial purposes,

(c) bee keeping,

(d) a dairy (pasture-based).

…

  1. Separately from the concept of developments that do not require consent, “exempt developments” are defined in the PLEP as follows:

Part 3 Exempt and complying development

3.1 Exempt development

…

(1) The objective of this clause is to identify development of minimal environmental impact as exempt development.

(2) Development specified in Schedule 2 that meets the standards for the development contained in that Schedule and that complies with the requirements of this Part is exempt development.

…

(6) A heading to an item in Schedule 2 is part of that Schedule.

  1. In accordance with cl 3.1(2) of the PLEP immediately above, the only development that is exempt is what appears in Schedule 2, “Farm dams”. Furthermore, such a structure must possess five characteristics:

Schedule 2 Exempt development

Farm dams in Zone RU1

(1) Must have a means of managing water overflow.

(2) Must be a minimum of 50m from each property boundary.

(3) Must not involve works within 40m of the bank of a named watercourse.

(4) Must not contain a spillway more than 1m in height.

(5) Must comply with the Water Management Act 2000.

  1. Clause 2.3(4) of the PLEP states that the “Land Use Table” is “…subject to the other provisions of this Plan.” The result is that the “Land Use Table” is subject to the operation of Part 6 of the PLEP, which itself sets out when earthworks do or do not require development consent:

Part 6 Additional local provisions

6.1 Earthworks

(1) The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

(2) Development consent is required for earthworks unless:

(a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or

(b) the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given.

…

[Emphasis added]

  1. As cl 6.1(2)(a) shows, earthworks can be an exempt development themselves by way of the PLEP or another EPI. And as cl 6.1(2)(b) shows, earthworks that are ancillary to development that is permitted without consent under the PLEP do not themselves require consent.

  2. The final relevant clause of the PLEP is its dictionary definition of a “farm building”:

Dictionary

…

farm building means a structure the use of which is ancillary to an agricultural use of the landholding on which it is situated and includes a hay shed, stock holding yard, machinery shed, shearing shed, silo, storage tank, outbuilding or the like, but does not include a dwelling.

[Emphasis added]

(Because it did not form part of the reasoning of her Honour, and because to my understanding it was a point of ancillary controversy between the parties, I will not proceed to analyse the clause of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (the SEPP) said by senior counsel for the respondent to “pick up” the above definition of “farm building” in the PLEP, and to insert it into the SEPP.)

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW)

  1. Seventhly and separately, turning then to the relevant portions of the SEPP, Division 2 sets out what is captured as an “exempt development”:

Division 2 Exempt and complying development

1.15 What development is exempt development?

(1) Development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of this Division for exempt development is exempt development for the purposes of this Policy.

(2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out.

  1. Eighthly and finally, Part 2 of the SEPP specifies “Earthworks” and “Farm Buildings” as exempt developments under the SEPP, so long as they comply with certain physical development standards:

Part 2 Exempt Development Codes

Division 1 General Exempt Development Code

…

Subdivision 15 Earthworks, retaining walls and structural support

2.29 Specified development

Earthworks and the construction or installation of a retaining wall or other form of structural support is development specified for this code if it is not carried out, constructed or installed on or in a heritage item or a draft heritage item, on a flood control lot or in an environmentally sensitive area.

2.30 Development standards

The standards specified for that development are that the development must:

(a) not be a cut or fill of more than 600mm below or above ground level (existing), and

(b) be located at least 1m from each lot boundary, and

(c) if it is carried out, constructed or installed in a heritage conservation area or a draft heritage conservation area—be located in the rear yard, and

(d) be located at least 40m from a waterbody (natural), and

(e) not redirect the flow of any surface water or ground water or cause sediment to be transported onto an adjoining property, and

(f) if it is a retaining wall or structural support for excavation or fill, or a combination of both:

(i) be not be more than 600mm high, measured vertically from the base of the development to its uppermost portion, and

(ii) be separated from any retaining wall or other structural support on the site by at least 2m, measured horizontally, and

(iii) be located at least 1m from any registered easement, sewer main or water main, and

(iv) have adequate drainage lines connected to the existing stormwater drainage system for the site, and

(g) if the fill is more than 150mm deep—not occupy more than 25% of the area of the lot, and

(h) if the fill is imported to the site—be free of building and other demolition waste, and only contain virgin excavated natural material (VENM) as defined in Part 3 of Schedule 1 to the Protection of the Environment Operations Act 1997.

Subdivision 16 Farm buildings

2.31 Specified development

The construction or installation of a farm building used for the purpose of an agricultural activity and not used for habitable purposes is development specified for this code if it is:

(a) constructed or installed on land in Zone RU1, RU2, RU3, RU4 or RU6, and

(b) not constructed or installed on or in a heritage item or a draft heritage item or in an environmentally sensitive area.

2.32 Development standards

(1) The standards specified for that development are that the development must:

(a) be not higher than 7m above ground level (existing), and

(b) not have an area of more than:

(i) if it is a stockyard—0.5ha, or

(ii) if it is any other building—200m2 (if situated on a lot of 2ha or more) or 50m2 (if situated on a lot of less than 2ha), and

(c) be located at least 20m from the primary road frontage of the lot and at least 10m from the other lot boundaries, and

(d) not be constructed or installed within 50m of a dwelling on an adjoining property, and

(e) be located at least 50m from a waterbody (natural), and

(f) to the extent it is comprised of metal components—be designed by, and constructed in accordance with the specifications of, a professional engineer, and

(g) to the extent it is a silo—not be fitted with a motorised fan for aeration or drying purposes.

(2) If the development is a shipping container, there must not be more than 1 shipping container per lot.

[Emphasis added]

Relevance of statutory instruments

  1. I turn at this stage to explain briefly the relevance to the stated case of the complex statutory structure founded upon the extracts that I have provided.

  2. As I have said, it was not disputed by the appellant that he engaged in development without consent when he carried out certain developments on his land. But at the original hearing, and on the appeal to her Honour, the appellant relied on exculpatory provisions under the relevant environmental planning instruments to demonstrate that the development undertaken by him did not require consent, or was an exempt development. In particular, he submitted that his purpose in undertaking the development was to run livestock on the property “down the track”, and that purpose brought him within at least one exculpatory circumstance in the various instruments with regard to all of the particulars.

  3. For that reason, he submitted, with regard to some particulars of the statement of charge, that the development was permissible without consent, pursuant to cl 6.1(2)(b) of the PLEP, as the works were ancillary to development for the purpose of “extensive agriculture” (in particular, the “grazing of cattle for commercial purposes”).

  4. To discuss the particulars a little out of order for structural reasons, with regard to the dam, particular G, reliance was placed on Schedule 2 of the PLEP, on the basis that a farm dam in Zone RU1 that satisfies certain requirements is an exempt development; again, that undefined phrase may lead one back to the question of characterisation based on purpose.

  5. As a result, the creek crossing, particular D, and the track from the creek crossing, particular E, were said to be works ancillary to a farm dam, and therefore did not require development consent, in accordance with cl 6.1(2)(b) of the PLEP.

  6. With regard to the shed site, particular B, the appellant relied on subdivision 16 of the SEPP, in that he submitted that the works were for the purpose of a “farm building”, and they complied with the Development Standards in cl 2.32 of that subdivision, and thus were an exempt development.

  7. In short, it can be seen that the purpose with which the development was undertaken was an important part of the process of characterisation of whether an exculpatory circumstance applied, pursuant to: the definition of extensive agriculture, cl 2.3(1)(a), 2.3(2) and cl 6.1(2) of the PLEP, and division 2 and subdivision 16, cl 2.31 of the SEPP.

  8. To summarise then the approach taken throughout the whole course of this litigation, and speaking broadly and without precision, the exculpatory circumstances very largely boil down, one way or another (whether by way of the various exculpatory circumstances in the PLEP, or the SEPP, or a combination of both) to a consideration of whether the development was undertaken by the appellant for the purposes of engaging in agriculture. Again, to state my understanding of the submissions of senior counsel for the appellant in a broad sense before us, they were that the questions in the stated case should be answered so as to inform her Honour that she made errors of law in her consideration of that central question of purpose on the part of the appellant.

  9. Finally, as I have said, it was not disputed before us that, as the appellant had sufficiently raised those matters, it was incumbent upon the respondent to prove, beyond reasonable doubt, that such works were not permitted without consent, or were not an exempt development, in accordance with the well-settled approach to disproof of exculpatory matters (as opposed to true defences) in criminal prosecutions.

Stated case

  1. The stated case commences by setting out the orders made by her Honour resolving the appeal. As I have explained, the only relevant order is that dismissing the appeal against conviction from the Local Court with regard to all but one of the pressed particulars of charge.

  2. Thereafter, it recounts the history of the matter, commencing with the issuing of the Penalty Infringement Notice in June 2015; the particulars of the statement of charge; and its allegation that the offence took place between 30 December 2014 and 12 June 2016.

  3. It moves on to summarise the relevant statutory instruments, in conformity with my own summary above.

  4. The judgment dismissing the conviction appeal is annexed to the stated case; I shall briefly deal later with the question of whether this Court can have recourse to that judgment, on that or any other basis.

  5. At [22] of the stated case, the following summary of factual findings appears:

“I found that extensive agriculture was not being carried out on the land during the charge period. I found that the Appellant’s evidence before the Local Court did not establish that the use of the land for extensive agriculture, meaning the grazing of livestock for commercial purposes, was intended. I also found that the appellant’s evidence lacked any indication of when such use would occur and was speculative (Par 44).”

  1. The stated case goes on to summarise the evidence of the appellant, including that “the construction of the dam was the first work undertaken on the site”; that it was placed strategically in order to be “close to locations of proposed development works in the future”; that it “would be used for livestock down the track”; that, if the development application had been refused, the appellant had intended to place “terraced gardens” on the land, and that he “could have put a terrace garden on the house side”; and that there was no livestock on the land during the charge period, nor as at the date of the Local Court hearing, that is, on 17 May 2016.

  2. Her Honour went on to recount that she had found that the evidence established “that the only purpose of the dam and the track to it (including the creek crossing) during the charge period was to facilitate the building of a house”. Her Honour also recounted that the finding was “that the excavation of the site for a house was the primary, indeed only, purpose of the earthworks during the charge period”.

  3. The stated case goes on to explain why particulars B, C, D, E and G were found proven.

  4. As for B, the clearing and excavation of the shed site, her Honour recounted the findings that “no agricultural activity was taking place on the land, that there was an absence of any evidence that extensive agriculture was intended to commence and, alternatively, that such a use was not imminent but merely speculative”.

  5. Her Honour also recorded the finding “that the evidence did not confirm the intended future use of the shed as coming within the definition of a “farm building” pursuant to the SEPP.

  6. Separately, her Honour recorded having found, in the alternative, that, even if the shed had been a farm building, it did not meet the standards for that type of development to be found in the SEPP, on the basis that the area cleared preparatory to its construction was substantially more than 200 square metres.

  7. Thirdly, her Honour recorded the finding that the level of excavation of the shed site substantially exceeded the depth permitted by way of the SEPP.

  8. As for particular C, the four stockpiles of earth or soil, her Honour recorded that, for the reasons given with regard to particular D, there was no “legal basis” for finding that the subject of this particular was exempt on the basis that it was “ancillary to another exempt development under cl 6.1 of the LEP”. Her Honour also found that at least one of the stockpiles that was part of particular C went beyond the height permitted by subdivision 15 of the SEPP, and was therefore not exempt pursuant to that subdivision.

  9. With regard to particular D, relating to the creek crossing, her Honour recorded findings of fact about its dimensions, including that it was 10 metres high.

  10. Her Honour also said in the stated case at [34]:

“I found that extensive agriculture was not being carried out, that the Appellant had not established that the use of the land for that purpose was intended and that such a use was not imminent (Pars 43 and 44). I found that the evidence establishes that the only purpose of the dam and the track to it (which includes the creek crossing referred to in Particular D) was to facilitate construction of a house in the charge period (Par 48)”.

  1. Her Honour went on to explain that, therefore, she found that the creek crossing could not be characterised as ancillary to the use of the land for agriculture.

  2. Her Honour separately rejected any exemption pursuant to the SEPP, based on the physical dimensions of the creek crossing.

  3. With regard to particular E, the track leading from the creek crossing, her Honour recorded the finding that “the evidence established the only purpose of the track was to facilitate construction of a house in the charge period (Par 48)”, and that her Honour had “therefore found that the track was not ancillary to the farm dam (Par 59)”.

  4. Separately, her Honour also recorded the finding that, due to its dimensions and physical characteristics, the track did not fall within the development standards to be found in the SEPP.

  5. With regard to particular G, the carrying out of earthworks associated with the building of the dam, her Honour said the following at [44] of the stated case:

“I found that the dam could not be ancillary to the use of the land for extensive agriculture as this was not being carried out on the land during the charge period, the evidence did not establish an intention by the Appellant to use the land for that purpose and there was no evidence to suggest that such a use was imminent (Part 44).”

  1. At [45] her Honour recorded “I found that the evidence established that the only purpose of the dam during the charge period was to facilitate the building of a house (Par 47).” Her Honour went on to recount that, therefore, her Honour had found that the dam was not a farm dam for the purposes of the PLEP. Separately, her Honour recorded finding that, due to its physical dimensions, the dam could not be an exempt development by way of the SEPP.

  2. That concludes my summary of the stated case. I turn now to analyse the four questions asked by her Honour of this Court.

Question 1

  1. Question 1 of the stated case is as follows:

Having determined as a fact that:-

(a) there was no current or imminent use of the land for the purposes of “extensive agriculture”; and

(b) that the appellant had not established that use of the land for that purpose was intended, such that any agricultural use of the land was only speculative.

Did I err in law in finding that the following works were not ancillary to development that was permitted without consent, pursuant to cl 6.1(2)(b) of the LEP:

i. the works comprising the clearing of the shed site in particular (b); and

ii. the works comprising the four stockpiles in particular (c); and

iii. the works comprising the creek crossing in particular (d); and

iv. the track from the creek crossing 500m up the hill in particular (e); and

v. the construction of a dam in particular (g)

or should I have found that the Council needed to negative the existence of a purpose of agricultural use at a reasonable future time?

Submissions of the appellant

  1. In written and oral submissions, senior counsel for the appellant submitted that the concept of development in the prohibitions contained within s 76A of the EPA Act is based upon use of land, which is in turn related to the purpose of the occupant or user of the land.

  2. He then proceeded to outline the relevant legislative provisions; as I have said, although complex, I do not believe that there is any significant dispute about them.

  3. To recap that structure a little by way of a summary of his submissions, Part 3, cl 3.1(2) of the PLEP was said to be the general provision with regard to what is classified as an exempt development:

“Development specified in Schedule 2 that meets the standards for the development contained in that Schedule and that complies with the requirements of this Part is exempt development.”

  1. Schedule 2 “Exempt Development” of the PLEP states that “Farm dams in Zone RU1” are an exempt development, and lists a number of requirements for classifying a structure as a “farm dam”. It was submitted that as “farm dam” is not defined in the PLEP, it is a conjunction of two ordinary English words, and so if “it’s a dam that’s on a property that’s intended to be a farm then it will be a farm dam”.

  2. Part 6, cl 6.1(2)(a) of the PLEP was then emphasised by senior counsel. It was said that the dam fell within the farm dam exemption, as the dam would provide water for cattle. In similar vein, the shed site fell within the farm buildings exemption pursuant to the SEPP, as the shed site would in due course have provided housing for mechanical appliances to do with agriculture (having said that, it was accepted that that had been a matter of submission, not evidence).

  3. It was also said that, pursuant to cl 6.1(2)(b), all of the earthworks, except with regard to asserted farm buildings, engaged in by the appellant were “ancillary to development that was permitted without consent”. The earthworks were permissible, it was said, because they were all ancillary to the purpose of extensive agriculture; for example, the creek crossing and tracks were submitted to be connected to the farm dam, and thus were ancillary to its purpose (and therefore an exempt development, either by way of the “farm dam” exemption or the “extensive agriculture” exemption).

  4. Turning then to Part 2 of the PLEP, senior counsel submitted that it introduces “land use zones” under cl 2.1. The land in this matter was zoned as “Rural Zones” “RU1 Primary Production”. Clause 2.3(3) provides further explanation of the land use table, in defining the land as within the provisions of Zone RU1 Primary production, in that it states that “a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing.” It was submitted that the word “purposes” makes clear that what determines whether or not something is development of the relevant kind is the intention of the party engaged in the relevant development.

  5. As Part 2 Land Use Table “Zone RU 1 Primary Production” reveals, “extensive agriculture” is permitted without consent. The submission was therefore that development for the purposes of extensive agriculture was permitted without consent.

  1. It was submitted that “grazing of livestock for commercial purposes” applies in this case, as that activity was planned by the appellant, and therefore such development was indeed permissible without consent. Further, it was said that as the council had not demonstrated that such development was not for those purposes (in other words, discharged its onus as prosecutor), the conviction was ill-founded.

  2. Counsel for the appellant then turned from the PLEP to the relevant provisions of the SEPP. He explained that the SEPP is a state-wide code and a “second gateway” whereby development without consent can nevertheless be permissible.

  3. Subdivision 16, cl 2.31 of the SEPP discusses “farm buildings”, and cl 2.32 identifies a number of development standards. Whilst the shed site that was cleared was greater than 200 square metres, it was said that Pain J was in error when she found that the shed itself did not comply with the development standards pursuant to this clause. That was said to be because the clearance of the site for the shed was not determinative of the size of the shed itself that was to be built.

  4. Separately, it was submitted that the recounting by her Honour of her findings at [22] of the stated case itself shows that her Honour’s approach was erroneous:

“I found that extensive agriculture was not being carried out on the land during the charge period. I found that the Appellant’s evidence before the Local Court did not establish that the use of the land for extensive agriculture, meaning the grazing of livestock for commercial purposes, was intended. I also found that the appellant’s evidence lacked any indication of when such use would occur and was speculative (Par 44).”

[Emphasis added]

That was said to constitute a clear onus reversal, because it was for the prosecution to demonstrate that what was taking place was development that required consent; in other words, in accordance with orthodox criminal law theory, once a defendant has discharged the evidential burden with regard to an exculpatory circumstance that is not a true defence, then it is incumbent upon the prosecutor to disprove that circumstance beyond reasonable doubt.

  1. It was submitted that her Honour needed to determine what the activating purpose was when the appellant undertook the development, and needed to determine that that purpose was not for the purposes of extensive agriculture before a conviction could be entered. Senior counsel submitted that the question of use leads one to consideration of purpose, in accordance with what was said in Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211 at 216 and other cases.

  2. It was submitted that this case does not involve consideration merely of the existing use at the time particularised in the charge document, but rather the enquiry must focus upon the question of purpose with regard to what is permissible by the PLEP (extensive agriculture), namely the grazing of livestock for commercial purposes, in the future.

  3. Therefore, senior counsel submitted, her Honour was in error by assessing merely whether the commencement of agricultural activity was imminent at the time of the offence. Such restrictive conditions were submitted to be not warranted by the language of the PLEP. Instead, her Honour should have assessed whether development was undertaken with a purpose of using it for extensive agriculture, without any restriction by way of requiring current use, or imminent use, for such a purpose. Imposing that temporal requirement was submitted to be too restrictive, in circumstances where acts preparatory to the conduct of a permissible activity may need to be undertaken.

  4. Counsel for the appellant submitted that if such ancillary or preparatory development or other infrastructure could not be undertaken prior to introducing livestock, that would lead to impractical consequences, including unnecessary delay. I understood the submission to be that it will often be the case that extensive agriculture is incapable of being undertaken without some preparatory work before it commences; to focus merely on the absence of extensive agriculture being undertaken at that preparatory time would be far too restrictive an approach.

  5. It was submitted that there was evidence of the intention of the appellant to undertake extensive agriculture: his statement that the dam would be used for livestock “down the track” (see [29] of judgment, and [23] of stated case). And the appellant was said to be engaging in entirely orthodox earthworks preparatory to the property becoming a farm. For such preparatory work to be impermissible (in the sense of requiring consent), unless grazing is taking place or imminent, was submitted to be a simply impracticable reading of the PLEP.

  6. With regard to the fact that the appellant could have applied for consent with regard to all of the works, it was submitted that the presence of permissions and exemptions in the statutory instruments was to save landowners the time and complexity of preparing an application. It was submitted that the legislation must be read in a practical way to facilitate landowners using their land with minimum bureaucratic control.

  7. It was submitted that the appellant gave evidence consistent with the necessary purpose, and it was thereafter for the prosecution to prove beyond reasonable doubt that the works were not being undertaken for the purpose of agricultural use. That burden was not discharged merely by establishing the simple objective fact that no livestock was being grazed during the charge period.

  8. Counsel submitted that her Honour stated that the appellant had failed to establish something that he had no obligation to establish; namely, that the appellant had not established that the use of the land for extensive agriculture was intended, but was only speculative, and therefore her Honour had felt entitled to convict the appellant (see [49] of the stated case). That was said to constitute a complete reversal of the correct question her Honour should have asked herself. Instead, her Honour should have asked herself whether, even though such use was not imminent, the prosecutor had satisfied her Honour that extensive agriculture was not the purpose of the appellant.

  9. Furthermore, it was submitted that the respondent could not determinatively rely on the appellant’s evidence at the Local Court that water from the dam may have been initially used for building works as opposed to agriculture. That was submitted to be an ancillary or incidental use over a limited period, and thus was not sufficient to establish, beyond reasonable doubt, that the purpose of the works were other than development for the purpose of extensive agriculture.

  10. Reliance was placed on authorities, including Port Stephens Council v SS & LM Jonston Pty Ltd (2007) 152 LGERA 193; [2007] NSWLEC 30 at [70] per Jagot J, for the proposition that it was for the prosecution to establish that the appellant could not rely on the exculpating circumstances in both the PLEP and the SEPP:

“The onus of proof

The Council’s submissions on the onus of proof risk masking the fact that the Council was required to prove beyond reasonable doubt each of the elements of the offence. The structure of the zoning table for the 2(a) zone made the development permissible only with consent the residual class, defined by the negative (that is, development not included in items (3) or (5) of the 2(a) zone). Accordingly, part of the Council’s obligation was to prove beyond reasonable doubt that the development was not included in items (3) or (5) of the zoning table for the 2(a) zone, as this was the only means by which the development could fall within item (4) of the zoning table. The Council thus bore the burden of proving all facts founding the ultimate conclusion about the status of the development (relevantly, as development not being exempt development). In this context, I see little, if any, scope for the defendants being subject to any evidential burden (Youssef v R (1990) 50 A Crim R 1 at 3, Environment Protection Authority v Leaghur Holdings Pty Ltd (1995) 87 LGERA 282 and Director General Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242 at [31]). Nevertheless, I address this submission further in my findings below.”

  1. Attention was also invited to the judgment of Pepper J in Heatscape Pty Ltd v Mahoney No 2 [2016] NSWLEC 45 at [208]--[210]:

“The tiered structure of Div 1 of Pt 4 of the EPAA makes it clear that exempt development does not require development consent under any circumstances (s 76(2) and (3)). Section 76A(1)(a) must be read together with s 76(2) and (3). That is to say, the council must first demonstrate that the development is not of a class that does not require consent, which must, by necessity, require proving that it is not exempt development. Only if the development is not exempt development, does the next step of considering whether development consent is needed for the activity under s 76A arise. These sections form a complete factual regime which must be established before a person or entity obtains a right to, or incurs a liability for, the carrying out of development.

This analysis is consistent with the text of cls 3.1 and 5.10(3) of the GLEP. Both clauses plainly state that if the development is exempt development then no consent is required. This is so irrespective of the fact that the development is in a heritage conservation area (cl 5.10(2)).

That the development is exempt development must therefore be negatived by the council beyond reasonable doubt. It is not an exception in the sense referred to above in the authorities.”

  1. To summarise then the three central points of senior counsel for the appellant, I understood the submission in a nutshell to be that her Honour had patently taken an approach to the exculpatory circumstances based (one way or another) on agricultural use that was simply too restrictive, based in turn on a too restrictive approach to the concept of purpose; had reversed the onus of proof with regard to that central question; and accordingly that the stated case must be answered in such a way as to correct those legal errors and mandate a further hearing in accordance with such answers.

Submissions of the respondent

  1. Because they are reflected in my determination, the submissions of senior counsel for the respondent do not require elaborate recitation. Suffice to say he explained yet again the interlocking structure of statutory instruments in conformity with what her Honour had written; resisted the proposition that there had been any operative onus reversal with regard to exculpatory circumstances; and also resisted the proposition that the approach by her Honour to the crucial question of purpose of the development was an error of law, in the sense of being wrongly restrictive.

Answer to question 1

  1. The real thrust of the submissions of senior counsel for the appellant was that, to the extent that the exculpatory circumstances depended on the appellant possessing a particular purpose when he undertook the development without consent, as a matter of law, her Honour had applied a test that was too rigorous.

  2. Separately, the proposition was that the second part of question one in the stated case betrays an onus reversal that is legally incorrect.

  3. Dealing with the second proposition first, the issue for determination by this Court is not whether the questions contained in the stated case demonstrate an error of law. That must particularly be the case when the stated case itself was, as I understand it, drafted by the legal team of the appellant and provided to her Honour with the approval of the legal team of the respondent. The issue, in my opinion, is surely whether the judgment with regard to which questions are asked in the stated case contains errors of law.

  4. In other words, to the extent that in this context and others senior counsel for the appellant relies upon the wording of the stated case to demonstrate error, I believe that it is incumbent upon this Court to analyse the words of the judgment itself; to do otherwise would be to engage in a highly attenuated exercise that would fail to focus upon whether legal error actually occurred in the determination by the Court that seeks the assistance of this Court by way of stating the case.

  5. To express my opinion another way, I cannot accept that the Court would intervene if the judgment was unimpeachable but the stated case betrayed some error of expression.

  6. Separately from that, as I have said, her Honour (with the approval of the parties) explicitly appended the judgment to the stated case. In my opinion, that act of incorporation means that formalistic concerns about not referring to the judgment at first instance pursuant to this procedure can be put to one side.

  7. Thirdly and finally, senior counsel for the appellant at the hearing before us did not resist this Court referring to the first instance judgment. Nor did senior counsel for the respondent bitterly oppose that course.

  8. In short, in my respectful opinion, in the circumstances of this case, to do otherwise would lead to a wrongfully artificial focus on the questions asked about the first instance determination, rather than that determination itself. I therefore propose to analyse the judgment with regard to the second proposition of senior counsel for the appellant; namely, that there was a legally wrongful onus reversal at first instance with regard to this central exculpating question of purpose.

  9. In my opinion, that proposition cannot be sustained. Whatever may be the infelicities of expression in the stated case, the judgment, read fairly and as an integrated whole, unquestionably expresses the proposition that it was incumbent upon the prosecution to prove beyond reasonable doubt every element of the offence, and to disprove to the same standard at least one element of every exculpatory circumstance with regard to which the appellant had discharge the evidential burden. I refer in particular to [6], [41], [54], [67], and [83] of the judgment.

  10. Turning now to the first submission of senior counsel for the appellant, the question should be understood as being whether, in considering the concept of “purpose” as part of the consideration of the exculpatory circumstances upon which the appellant relied to raise a reasonable doubt, her Honour committed a legal error by being too restrictive.

  11. Analysis of that question calls for a comparison between the settled law about the meaning of the concept of purpose in the context of environmental offences, and the legal test that her Honour actually applied to the facts as found (which are, of course, unable to be impugned in proceedings such as these). Again, if there is a significant difference between the way her Honour expressed herself about legal matters in the stated case and in the judgment, I consider that it is the latter that must be the subject of analysis.

  12. The concept of purpose in the context of whether a development can be undertaken without the relevant consent has been authoritatively considered in two decisions to which the parties invited us.

  13. In Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 at [27]-[45], Preston CJ of the LEC said:

“In planning law, use must be for a purpose: Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534-535 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534.

In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500. The use of land involves no more than the “physical acts by which the land is made to serve some purpose”: at 508.

In the case of use of land for the purpose of retail development, such as the supermarket in this case, the purpose can only be achieved by the physical acts of constructing not only the space in which the retailing takes place but also the spaces for the associated activities as well.

…

The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310.

…

The characterisation of the purpose of development must also be done in a common sense and practical way...”

  1. In Abret Pty Limited v Wingecarribee Shire Council [2011] NSWCA 107, a decision of the New South Wales Court of Appeal, it was said at [49]-[54]:

“The proper approach to characterisation has been the subject of much judicial consideration…

The case law was extensively reviewed by Preston CJ of the LEC in Chamwell Pty Ltd v Strathfield Municipal Council and it is unnecessary to repeat it. His Honour's review enables me to deal more economically with the arguments advanced by the parties than otherwise would have been the case.

The appellant, in its argument that the proposed development was for seniors housing and not for dwelling houses or residential flat buildings, emphasised two principles. First, in planning law, use must be for a purpose. The use of land involves no more than the "physical acts by which the land is made to serve some purpose ": Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; 96 CLR 493 at 508; Chamwell at [28]. Put another way, 'purpose' is the end to which the use of the land can be seen to be put. It describes the character which is imparted to the land at which the use is pursued: see Shire of Perth v O'Keefe at 534-535; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106; 80 LGERA 173 at 188; Chamwell at [27].

Secondly, in planning law, 'purpose' is not concerned with the nature of the buildings that will be used to serve that purpose. Uses of different natures can still be seen to serve the same purpose: see Shire of Perth v O'Keefe at 534-535; Warringah Shire Council v Raffles [1979] 2 NSWLR 299; (1978) 38 LGRA 306 at 308; Chamwell at [34]. The characterisation of the purpose of a use of land is done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on. The characterisation process is not carried out by reference to the detailed activities, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310 (at [36]).

This second proposition is well illustrated by the facts in Chamwell, where the proposed development comprised a mixed use building containing residential units, a supermarket and a basement car park with associated driveways, travelators, pedestrian ramps and a forecourt. Shops were a prohibited use in the 2(b) (Residential) zone. Roads were a permissible use. That part of the development proposal (being Lot D) that fell within zone 2(b) included the residential units as well as the basement car park and the driveways and circulation aisles to access the car park. Preston CJ of the LEC held that the use of the car park and associated activities were subordinate to the purpose of the supermarket and were not capable of being for an independent use of a road. Accordingly, they were properly to be characterised as for the use of a shop, namely the supermarket and thus the development was prohibited in the 2(b) zone.”

  1. In short, the principles that I derive from these two cases are as follows: first, purpose is the “end to which land is seen to serve” or “to be put”; secondly, the purpose for which land is used is determined with reference to how that purpose is achieved practically (for example, the physical acts necessary to achieve that purpose); thirdly, the purpose of the use of land should be characterised at a “level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on”; fourthly, the purpose must also be characterised in a common sense and practical way; and fifthly and finally, the use of land is simply the “physical acts by which land is made to serve some purpose”.

  1. Applying those principles to the findings of fact in this case, bearing in mind the findings recounted in question one, I believe that there is no need to have recourse to the judgment in this context. To recap: in the findings recounted both before and within the question, her Honour found the following as facts.

  2. There was no livestock on the land during the charge period.

  3. There was no livestock on the land on the date of the Local Court hearing.

  4. Use of the land for the purposes of extensive agriculture was not current.

  5. Use of the land for the same purposes was not imminent.

  6. The appellant did not intend use of the land for that purpose.

  7. Any agricultural use of the land was only speculative.

  8. The appellant gave evidence of an intention to run livestock on the land “down the track”.

  9. Applying the principles discussed in Chamwell and Abret to those findings of fact (which are, as I have said, unable to be impeached in these proceedings) the proposition that her Honour committed an error of law in finding that, with regard to all particulars, it had not been the purpose of the appellant to engage in agriculture, cannot in my opinion be sustained. Indeed, any other outcome would have been, with respect, very surprising.

  10. Furthermore, a finding of fact having been made that agricultural use of the land was “only speculative”, I believe that a finding that that state of mind nevertheless fell within the meaning of a “purpose” to engage in an agricultural use for the purposes of the exculpatory circumstances would have the potential to undermine the whole statutory structure that I have extracted above. By that I mean, if it were the case that a citizen who undertook development without consent could be exculpated of that failing merely on the basis of a speculative agricultural use “down the track”, the whole regime of deterrence of unauthorised development could be set at naught, with significantly negative environmental results.

  11. In short, on the facts as found, I do not believe that error of law is demonstrated in the approach of her Honour to the central question of purpose.

  12. Finally, to the extent that the final portion of the question asks a further question with regard to a possible alternative finding, because I consider that there was no error in the primary finding, my proposed answer does not engage with that further question.

  13. I would answer question one in the stated case as follows: “No (that is, there was no error in law in finding that the listed works were not ancillary to development that was permitted without consent).”

Question 2 – Particular (g) – Farm Dam

Having determined as a fact that:-

(a) there was no current or imminent use of the land for the purposes of “extensive agriculture”; and

(b) that the appellant had not established that use of the land for that purpose was intended, such that any agricultural use of the land was only speculative.

Did I err in law in finding that:

i. there must be a direct link between the use of the dam and the use of the land for agricultural purposes during the charge period or within a short timeframe for the dam to be a “farm dam”; and

ii. the works comprising the construction of a dam in particular (g) were not for the purposes of a “farm dam” within the meaning of Schedule 2 to the LEP; and

iii. the works comprising the creek crossing in particular (d) were not ancillary to a “farm dam”; and

iv. the works comprising the track from the creek crossing 500m up the hill in particular (e) were not ancillary to a “farm dam”.

Submissions of the parties about question 2

  1. Having recounted the complex statutory structure in great detail above, and having also recounted the written and oral submissions of senior counsel for the appellant with regard to question one in the stated case in detail, I do not believe it is necessary to recount his submissions with regard to question two in similar detail. That is because they constituted a helpful analysis of the statutory structure, including the fact that an excluding circumstance with regard to a development can be if it is “ancillary to” a development that, one way or another, does not require consent; a submission that the question of whether the body of water constituted a “farm dam” devolved, in the absence of a definition in the statutory instrument, to a question of assessment of purpose; that her Honour had approached the legal question of characterisation of purpose too restrictively; and, finally, that the question itself betrays another legally wrong onus reversal.

  2. Nor do I believe it necessary to summarise the submissions of the respondent about this question. That is because they constituted very largely a discussion of the statutory structure that I have set out more than once; they resisted the proposition that there had been onus reversal with regard to the exculpatory circumstances; and they maintained the position that the approach by her Honour to the central question of characterisation of purpose was unable to be legally impeached.

Determination

  1. Turning to my answer to this second question, the vast majority of my analysis with regard to the answer to the first question is apposite, and accordingly I will be concise.

  2. First, to the extent that it may be suggested that the question reverses the onus, as I have said in my opinion the issue is whether her Honour did so in the judgment, not in the stated case.

  3. Secondly, to repeat myself a little, the findings of fact recounted in the first part of question two are virtually fatal to any other approach than that taken by her Honour to the question of the purpose that must underlie the exculpatory circumstances. In particular, once the immutable factual finding that “any agricultural use of the land was only speculative” is accepted, the proposition that there was legal error in her Honour failing to characterise the relevant body of water as a “farm dam” is unsustainable.

  4. Thirdly, it can be seen that sub-questions (iii) and (iv) are in fact to do with particulars D and E of the charge document. But the dispute between the parties about exculpatory circumstances founded upon the ancillary nature of a portion of the development does not need to be resolved here. Nor does there need to be detailed discussion of what is meant by the concept of one undertaking being ancillary to another. That is because if the primary part of the question is to be answered in the negative – as I believe it must – then the secondary part of the question must fall away.

  5. I would answer question two of the stated case: “No.”

Question 3 – Particular (b) – Shed site

Having found as a fact:-

(a) That there was no current or imminent use of the land for the purposes of an “agricultural activity”; and

(b) That the appellant had not established that use of the land for that purpose was intended, such that any agricultural use of the land was only speculative.

Did I err in law in finding that the works comprising the clearing of the shed site in particular (b):

i. were not works for the purposes of a “farm building” pursuant to Subdivision 16 of the SEPP; and

ii. failed to comply with the development standards in 2.32(1)(b)(ii) in circumstances where there was no evidence that the shed, the purpose for which the works were carried out, would be more than 200m².

Submissions of the appellant

  1. Yet again, in this context the submissions of senior counsel for the appellant were similar: an analysis of the statutory structure; a submission that the approach to the crucial question of purpose was too restrictive and legally wrong; and the submission that the question itself bespeaks onus reversal.

  2. The point was made – and uncontroversial between the parties – that the SEPP provides further potentially exculpating circumstances beyond those to be found in the PLEP.

  3. It was emphasised that the refusal by her Honour to characterise the structure in question as a “farm building” boiled down, yet again, to the asserted legal error with regard to assessment of purpose.

  4. It was said – and conceded by senior counsel for the respondent – that her Honour had made an error by conflating the area cleared for the shed with the size of the proposed shed itself. In other words, in finding that the shed was excluded on the basis of its size, it was said by senior counsel for the appellant that her Honour had made a patent, conceded error that should be thought of as an error of law and liable to correction.

Determination

  1. As I have said above, the proposition that the shed site physically failed to comply with the exculpatory circumstance founded on its physical dimensions was conceded by senior counsel for the respondent to be erroneous. In accepting that concession, I shall not pause to analyse whether the approach of her Honour constituted an error of law, an error of fact, or an error of mixed fact and law. That is for the simple reason that the refusal of her Honour to find this particular unproven, on the basis of that exculpatory circumstance, was an entirely secondary portion of the analysis of her Honour.

  2. To express that another way: if the respondent succeeded in proving that the structure was not for a purpose that gave rise to an exculpatory circumstance, then the conceded error was of no moment, because one does not “get to” the question of compliance with the physical standards of the proposed shed, unless the structure in question is a farm building. And that leads one back, yet again, by way of the words of clause 2.31 within Subdivision 16 of the SEPP, to the question of characterisation of purpose, in accordance with the two authorities from which I have extracted at length.

  3. Turning to determine that primary question, all that I have written above about the question of asserted onus reversal in the stated case itself applies here: the judgment is an entirely orthodox application of the principle that it was incumbent upon the respondent to disprove the exculpatory circumstances relied upon by the appellant, once the evidential burden had been discharged.

  4. Separately, what I have written about the question of purpose is also applicable here: I do not accept that it was an error of law to be satisfied beyond reasonable doubt that the appellant did not have an exculpatory purpose, when the relevant use was found as a fact to be “only speculative”.

  5. I would answer question three of the stated case as follows: “(i) No. (ii) Does not arise.”

Question 4 – Finding in regard to purpose

If properly construed my findings included a finding as a fact beyond a reasonable doubt that the appellant did not intend to use the land for an agricultural purpose within a reasonable future time, then did I err in law on the ground that the evidence could not have supported such a finding.

Submissions of the appellant

  1. Senior counsel for the appellant maintained two key points with regard to this question in written and oral submissions.

  2. First, as before it was submitted that her Honour did not allow consideration of the possible future use of the development. In this regard, her Honour erred in restricting the temporal period in which agricultural purpose could be determined.

  3. Secondly, senior counsel for the appellant repeated the submission concerning onus reversal – namely, that the phrasing of the stated case reflected her Honour’s legal error of placing the onus upon the appellant to prove that the land was for extensive agricultural purposes.

Determination

  1. Turning to my determination of the answer to this question, I respectfully do not believe that it should be answered. That is for the following four separate reasons.

  2. First, the question is predicated on a contingent finding of fact. But I respectfully do not believe that a stated case can be provided to this Court in that way. In a nutshell, a stated case has always been understood as a process whereby an inferior court seeks the assistance of a superior one by asking a number of questions about legal matters, founded upon the facts as actually found by the inferior court. For a discussion of the history of the development of the procedure, in the absence of a statutory right of appeal in criminal matters, whereby justices in England would seek the advice about legal questions from superior courts, on the assumption of proof of certain facts before delivering judgment, see R v Walsall Overseers (1878) 3 QBD 457 at 410 ff; Ward v Williams (1955) 92 CLR 496 at 509 ff; [1955] ALR 308; and J H Baker, An Introduction to English Legal History (4th ed, 2011, Oxford University Press) at 521-23.

  3. Secondly, the question posed, of whether or not evidence in a criminal prosecution supports a finding of fact, is not a pure question of law. So much is readily established by the need to obtain leave in this Court in appeals against conviction in which it is asserted that a verdict of guilty is unreasonable or unable to be supported, in accordance with s 5 of the CAA. And yet a stated case is a procedure whereby a judicial officer may, having set out indisputable findings of fact, seek guidance from a superior court with regard to a pure question of law. Quite apart from that traditional understanding, so much is clear from the words of s 5BA of the CAA itself.

  4. In short, I do not believe that the question as framed fits within the statutory and historical parameters of a stated case.

  5. Thirdly, even if I be wrong in that, I respectfully think it inconceivable that it was ever the intention of Parliament that, by way of s 5BA of the CAA, this Court is to embark upon a detailed analysis of the evidence in a Local Court hearing that culminated in a fine, in order to determine whether evidence tendered in that hearing could support a finding of fact anterior to proof of guilt. Apart from anything else, none of the evidence in either the Local Court or the Land and Environment Court was placed before us, entirely in accordance with the orthodox procedural parameters of a stated case.

  6. Fourthly and finally, senior counsel for the appellant himself seemed to accept all of the above in his oral submissions in reply, when he said “It is not possible within this procedure to engage in the kind of global evaluation of whether all things considered it was a fair thing anyway. To do that means I would have had to take your Honour and squeeze nuances out of a number of documents that were tendered before the Local Court.”

  7. In short, I would answer question four: inappropriate to answer.

Conclusion and proposed orders

  1. I propose the following order:

  1. Leave to extend time to submit the stated case is granted.

  1. I propose the following answers to the questions contained in the stated case:

  1. Question 1: No (that is, there was no error in law in finding that the listed works were not ancillary to development that was permitted without consent).

  2. Question 2: No.

  3. Question 3: (i) No. (ii) Does not arise.

  4. Question 4: Inappropriate to answer.

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Amendments

04 March 2019 - Deleted paragraph numbers 35 and 36 as these were not new paragraphs.


In paragraph 92 line 2 the name "Jago" was deleted and replaced with "Jagôt".

12 March 2019 - paragraph 92 - replaced "Jagôt" with "Jagot"

26 March 2019 - Cover sheet the solicitors for the respondent (Bradley Allen Love) has now been added.

Decision last updated: 26 March 2019

Cases Citing This Decision

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