Reported Decision : (2008) 71 NSWLR 563 Land and Environment Court of New South Wales CITATION : Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 4) [2008] NSWLEC 149 PROSECUTOR Wollongong City Council PARTIES : DEFENDANTS Ensile Pty Limited & Robert Martin (aka Bob) Hogarth FILE NUMBER(S) : 50019 of 2007; 50021 of 2007; 50047 of 2007; 50048 of 2007 CORAM: Jagot J KEY ISSUES: Prosecution :- onus of proof in respect of existing or continuing use rights - whether lack of such rights is an element of the offence or an exception - defendants bear onus on balance of probabilities Crimes Act 1900 Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Interpretation Act 1987 Land Tax Management Act 1956 Local Government Act 1993 Valuation of Land Act 1916 ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 ADI Limited v Environmental Protection Authority (2000) 18 A Crim R 335 Azzopardi v The Queen (2001) 205 CLR 50 Cameron v Holt (1980) 142 CLR 342 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 City of Stirling v Clemente [1999] WASCA 245 Danielle v Shire of Swan (1977) 93 LGERA 201 Davis v Pember (1958) 5 LGRA 78 Director of Public Prosecutions v United Telecasters Sydney Limited (1990) 168 CLR 594 Dowling v Bowie (1952) 86 CLR 136 Dyers v The Queen (2002) 210 CLR 285 CASES CITED: He Kaw Teh v The Queen (1985) 157 CLR 523 Kogarah Municipal Council v Johnstone (1979) 41 LGRA 366 La Rosa v City of Wanneroo (2006) 154 LGERA 11 Macarone v McKone [1986] 1 Qd R 284 Marshall v Averay [2006] QDC 356 Morris v Woollahra Municipal Council (1966) 13 LGRA 117 Penrith Waste Services Pty Ltd v Penrith City Council (1998) 101 LGERA 98 R v Abusafiah (1991) 24 NSWLR 531 R v Youssef (1990) 50 A Crim R 1 Roddy v Perry (No 2) (1958) 58 SR (NSW) 41 Vines v Djordjevitch (1955) 91 CLR 512 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Woolmington v The Director of Public Prosecutions [1935] AC 462 DATES OF HEARING: 16 - 17 April 2008 EX TEMPORE JUDGMENT DATE : 17 April 2008 PROSECUTOR Mr C W McEwen SC with Mr Matthew Fraser and Mr Michael Staunton SOLICITORS Kells the Lawyers LEGAL REPRESENTATIVES: DEFENDANTS Mr T F Robertson SC with Mr T G Howard SOLICITORS Burrell Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Jagot J 17 April 2008 50019 of 2007 50047 of 2007 WOLLONGONG CITY COUNCIL Prosecutor ENSILE PTY LIMITED Defendant 50021 of 2007 50048 of 2007 WOLLONGONG CITY COUNCIL Prosecutor ROBERT MARTIN (AKA BOB) HOGARTH Defendant JUDGMENT Jagot J: 1 The defendants are charged with an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by carrying out development (namely, clearing) which either required development consent where no such consent had been obtained contrary to s 76A or which was prohibited and contrary to s 76B of that Act. An issue has arisen in the proceedings concerning whether the prosecutor or defendants bear the legal onus of proof with respect to existing or continuing use rights under ss 107(1) and 109(1) of the Act. The defendants requested that I rule on this issue before the close of the prosecutor's case. The prosecutor agreed that this was appropriate. Consistent with the common position of the parties, I propose to do so. 2 In order to understand the competing positions of the defendants and the prosecutor it is necessary to identify the relevant statutory provisions. 3 Division 1 of Pt 4 of the EPA Act provides as follows: 76(1) 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. … 76A(1) 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. … 76B If an environmental planning instrument provides that: (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land. 76C This Division is subject to the other provisions of this Act, unless express provision is made to the contrary. 4 Division 10 of Pt 4 of the EPA Act includes provisions in the following terms: 106 In this Division, existing use means: (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse. 107(1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. … 109(1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained. 5 Section 125(1) of the EPA Act provides that: ( 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 Director-General, 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. 6 Section 417A of the Crimes Act 1900 is also relevant and is as follows: (1) Any exception, exemption, proviso, excuse or qualification to the offence (whether or not it is in the same provision with a description of an offence in an Act or statutory rule or document creating the offence) need not be specified or negatived in an indictment or other process commencing proceedings. (2) The exception, exemption, proviso, excuse or qualification may be proved by the accused person. (3) If the exception, exemption, proviso, excuse or qualification is specified or negatived in the indictment, court attendance notice or other process commencing proceedings, the prosecutor is not required to prove it. 7 The defendants submitted that: - (i) in criminal proceedings the onus is borne by the prosecutor and, subject to express statutory reversal, never shifts (Woolmington v The Director of Public Prosecutions [1935] AC 462 at 465, Cameron v Holt (1980) 142 CLR 342 at 346 – 347 and 348, He Kaw Teh v The Queen (1985) 157 CLR 523 at 534 – 535, 573 – 574 and 592 – 594), (ii) in all cases where a defendant raises a defence, the prosecutor must negative any reasonable possibility of the defence beyond reasonable doubt (R v Abusafiah (1991) 24 NSWLR 531 at 541G, R v Youssef (1990) 50 A Crim R 1 at 2 – 3), (iii) however, where a matter involves elements of the offence, the defendant bears not even an evidential burden (Azzopardi v The Queen (2001) 205 CLR 50 at [34] and Dyers v The Queen (2002) 210 CLR 285 at [9], [52], and [118] – [123]), (iv) one statutory exception is s 417A of the Crimes Act, (v) whether a provision creates a statutory exception depends on construction of the offence-creating provisions, in particular whether the requirement is part of the statement of the general rule or not (Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 257.6, (vi) Chugg shows that the question whether knowledge of the facts is peculiarly within the defendant's ken, as opposed to that of others, is relevant to this construction issue, (vii) with existing use rights, rating and taxing statutes show that councils are a repository of knowledge of the use of land (eg, the requirements for the detailed classification of the use of land for rating and valuation purposes, such as ss 493, 515, and 592(2)(a) of the Local Government Act 1993, s 10AA of the Land Tax Management Act 1956, ss 6A, 14A(1), and various other provisions of the Valuation of Land Act 1916, (viii) the focus of s 125(1) of the EPA Act is a thing forbidden to be done under the Act, (ix) nothing is forbidden to be done under the EPA Act if the thing done involves the continuance of an existing or continuing use (ss 107(1) and 109(1)), (x) specifically, an environmental planning instrument cannot forbid any such continuation as ss 107(1) and 109(1) state in terms, (xi) in other words, ss 107(1) and 109(1) operate directly on environmental planning instruments, (xii) the lack of any thing forbidden to be done is reinforced by the other part of the offence-creating provision – ss 76A and 76B, as both provisions are predicated on the requirement of "if an environmental planning instrument provides that…", yet an environmental planning instrument can never so provide with respect to the continuation of an existing use (ss 107(1) and 109(1)), (xiii) even without s 76C, the result is that the lack of existing use rights is part of the general statement of obligation, (xiv) s 76C reinforces this conclusion by expressly making ss 76A and 76B subject to all other provisions of the Act, including ss 107(1) and 109(1), and (xv) there is a significant difference between criminal and civil proceedings for these reasons, so other civil cases on the issue of onus are of limited assistance. 8 It necessarily follows, according to the defendants, that the lack of an existing or continuing use is an essential element of the offence charged, because an environmental planning instrument can never relevantly provide where there is such a use. The older authorities support this analysis (Davis v Pember (1958) 5 LGRA 78 at 80, where reference is made to the provision of the ordinance not including the words "not being an existing use", as well as Roddy v Perry (No 2) (1958) 58 SR (NSW) 41 at 47). Unless it can be established that there are no existing use rights, there is no offence. The onus is on the prosecutor to prove the offence beyond reasonable doubt and that onus never shifts. Even if this is incorrect, the defendants' onus is evidential only and may be satisfied by a real possibility of existing use rights arising through the prosecutor's case, in which event the prosecutor must negative existing use rights beyond reasonable doubt. 9 The prosecutor submitted that: - (i) the interrelationship between ss 76A and 76B (on the one hand) and ss 107(1) and 109(1) (on the other hand) is a classic example of a general statement ("if the environmental planning instrument provides…") and an exception ("nothing in an environmental planning instrument…") for a limited class of activities, (ii) ss 76A and 76B are not to be read as if they incorporated a pre-condition (not being an existing use), (iii) Davis v Pember, properly analysed, is not distinguishable (and nor is Morris v Woollahra Municipal Council (1966) 13 LGRA 117 at 122), and (iv) knowledge of the use of land for the purpose of rating and taxing provisions cannot be equated to the type of knowledge an owner would have. Even where land is sold, the present owner has the best capacity to know the history of use from the former owner. 10 There are many statements concerning the relevant principles of construction that apply. 11 In Vines v Djordjevitch (1955) 91 CLR 512 at 519 the High Court said: In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance. But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. …But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter. 12 In Director of Public Prosecutions v United Telecasters Sydney Limited (1990) 168 CLR 594 at 611 the High Court said: When a statute imposes an obligation which is the subject of a qualification, exception or proviso, the burden of proof concerning that qualification, exception or proviso turns on whether it is part of the total statement of the obligation. If it is, the onus in respect of the qualification, exception or proviso is on the party asserting a breach of the obligation. If it is not, the party relying on the qualification, exception or proviso must prove that he or she has complied with its terms. 13 In Chugg at 257 - 258 the High Court expresses itself as follows (excluding citations): For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an "exception"), which serves to take a person outside the operation of a general rule. The distinction does not depend on the rules of formal logic. Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention "to impose upon the accused the ultimate burden of bringing himself within it": The intention may be discerned from express words or by implication…. … if a matter accompanies the description of an offence, then it will ordinarily be construed as an element of the offence which the prosecution must prove, unless there is something in the form of the language used or in the nature of the subject matter to suggest that it is an exception upon which the defendant bears the onus of proof. Although the form of language may provide assistance, ultimately the question whether some particular matter is a matter of exception is to be determined "upon considerations of substance and not of form"… 14 In ADI Limited v Environmental Protection Authority (2000) 18 A Crim R 335 at [15] Foster AJA emphasised that, the matter being one of statutory construction, the general statutory setting in which the provision arises must be considered. 15 Many authorities also deal with the onus with respect to existing use rights, albeit subject to different statutory provisions. 16 Davis v Pember concerned offence-creating provisions in the County of Cumberland Planning Scheme Ordinance. The Court characterised the existing use rights clause (cl 32) as an exception to the prohibition in cl 29, in respect of which the defendant bore the onus on the balance of probabilities. In Morris v Woollahra the High Court endorsed this approach. The defendants in this matter distinguish these authorities based on the different statutory scheme and, as noted, said they supported their approach. Later decisions indicate to the contrary. 17 In Kogarah Municipal Council v Johnstone (1979) 41 LGRA 366 at 372 Powell J applied Vines v Djordjevitch and accepted that existing use rights were an exception to a general rule. In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 337 – 338 Kirby P dealt with an issue of onus on the basis of a concession that Morris was not distinguishable despite the fact that the relevant provision at that time (s 76) said "Subject to this Act, where an environmental planning instrument provides that…". Subsequently, in ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 72, Kirby P (with whom Samuels JA and Hunt AJA agreed) found that Morris bound the Court to find that the onus was on the appellants (the person carrying out the development). See, to the same effect, Penrith Waste Services Pty Ltd v Penrith City Council (1998) 101 LGERA 98 at 105 – 106. 18 The weight of authority in other jurisdictions is to the same effect, albeit recognising that different statutory schemes are in play. One example is Danielle v Shire of Swan (1977) 93 LGERA 201. One exception is Macarone v McKone [1986] 1 Qd R 284 in which the Court found that an offence creating provision opening with the words "Subject to Part III…", when Pt III was the specific part containing the existing use provisions, did not create an exception. On that basis, the Court distinguished Davis v Pember and Morris v Woollahra. Macarone was then itself distinguished in Marshall v Averay [2006] QDC 356 where the Court noted (at [39]) that the offence creating provision made no mention of existing uses (in contrast to Macarone) and concluded that, properly construed, the provisions did not indicate that the absence of a continuing pre-existing use was part of the complete factual situation giving rise to the offence. Doubts about the general applicability of Macarone were also expressed in City of Stirling v Clemente [1999] WASCA 245 at [19] – [27]. In that matter Parker J also noted (consistent with the assumption in the authorities above) that the common law principles of construction relating to the onus where a statute defines the grounds of liability apply to both civil and criminal proceedings (citing Dowling v Bowie (1952) 86 CLR 136 at 139 – 140 and Vines v Djordjevitch). Similarly, in La Rosa v City of Wanneroo (2006) 154 LGERA 11, Johnson J described these principles as principles of the common law equally applicable to civil and criminal proceedings (at [32] – [38]). Johnson J rejected an argument that there either was or was not a breach of the scheme, and with a non-conforming use there could never be a breach (being an argument similar to the defendants in this matter). He held that the non-conforming use provisions in that case were properly seen as an exception to a general rule, concluding (at [30]) that "In my view, [the clause] identifies circumstances in which a person may be excused or exempt from the operation of any provision of the scheme, and hence the operation of [the Act]; that is, where it is established that the land is being used for a nonconforming use. I do not consider the terms of the section involve an acceptance or recognition that there is no breach of the scheme, merely that no consequences flow to the person carrying on a nonconforming use, provided the relevant criteria are met". Accordingly, the defendant bore the onus of proving the exception in that matter. 19 In further submissions, the defendants contended that the civil authorities (Sedevcic, Fat-Sel, and Penrith Waste Services in particular) could not be relied on in the criminal context as analysis of Sedevcic shows that their source or origin is foreign to criminal proceedings. Specifically, Cripps J in the first instance Sedevcic decision (Warringah Shire Council v Sedevcic (1986) 57 LGRA 335) based his analysis on the breadth of the Court's discretion under s 124, which has no role to play in criminal proceedings. The defendants also referred to Macarone, discussed above. The prosecutor said that close consideration of Sedevcic confirmed that the courts were dealing with the outcome of the construction issues consistent with the general common law principle. 20 The overwhelming weight of authority supports the position of the prosecutor that existing or continuing use rights are an exception to a general statement of liability that development may only be carried out in accordance with an environmental planning instrument, with the consequence that the onus is on the defendants to bring themselves within that exception, albeit on the balance of probabilities. 21 In any event, the scheme of the EPA Act discloses that the substantive or real character of the provisions is consistent with the approach evident in the authorities. Pt 3 of the EPA Act provides for the making of environmental planning instruments. Those instruments take effect through Pt 4, in particular ss 76, 76A and 76B. There are numerous indicators that those sections contain a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision, namely, (i) the existence of the instrument, (ii) the instrument providing, relevantly, that specified development may not be carried out except with consent or is prohibited, (iii) the carrying out of the specified development, (iv) by the defendants, (v) in the case of development permissible only with consent, without that consent having been obtained. 22 There is no mention in those provisions of a requirement for a lack of existing or continuing use rights. Broader consideration discloses the operation of ss 107(1) and 109(1). However, in form and substance these are provisions that involve "some special grounds of excuse, justification or exculpation depending upon new or additional facts" (Vines v Djordjevitch at 519). The wording of those provisions ("…nothing in this Act or an environmental planning instrument prevents the continuance of an existing use" in s 107(1) and "Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose…" in s 109(1)) supports this conclusion. The fact that the provisions refer to, and in the words of the defendants, operate directly on environmental planning instruments, does not alter their fundamental character. In form and substance, the provisions carve something out of the general liability created by an environmental planning instrument. They create a special ground of excuse based on additional facts within a narrow class, namely, the continuance of an existing use (as defined in s 106) and the continuance of a continuing use (as provided for in s 109(1)); these are limited types of development dependent on facts peculiar to the history of the particular use (use generally being development as defined in s 4(1)). Accordingly, there remains a thing forbidden to be done (development in breach of the environmental planning instrument) but the thing, by reason of additional facts, is excused or (more accurately) defeated or excluded by the special provisions. 23 The defendants' approach to the provisions (including the terms of s 76C) places too little weight on the reference in Vines v Djordjevitch to the attraction of the principle to "exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts". Sections 107(1) and 109(1), in terms, assume the general or primary ground of liability (namely, an environmental planning instrument so providing) and then deny that liability by reason of additional or special facts relating to the particular history of a use that would otherwise be development subject to the instrument. The provisions thus disclose a legislative intention "to impose upon the accused the ultimate burden of bringing himself within it" (Chugg at 257 and the cases cited therein). This does not involve any reversal of the onus of proof. It involves an application of the common law principles discussed above about assigning the onus of proof (in accordance with s 417A of the Crimes Act). 24 With respect to s 76C, it is also telling that Kirby P in Fat-sel (with whom Samuels JA and Hunt AJA agreed) considered Morris binding despite the form that s 76 then took with the opening words "Subject to this Act…". That is, the offence creating provision itself (or part of it) expressly referred to the other provisions of the Act, but the Court of Appeal did not see that as a distinguishing factor from Morris. Section 76C is a separate provision (in the same division as ss 76A and 76B) that refers not specifically to the existing use provisions in Div 10, as in Macarone, but to the provisions of the Act generally (as in Fat-sel). Moreover, the Court in Macarone does not refer to Fat-sel. 25 I also do not accept the defendants' argument that this approach would be the equivalent of enabling a prosecutor to point to one environmental planning instrument as creating a prohibition so that a defendant has the onus of proving another instrument that takes precedence because s 36 (dealing with inconsistency between instruments) is another provision of the EPA Act not referred to in ss 76A and 76B. The authorities make clear that the issue is one of legislative intention to be determined, ultimately, by considerations of substance, rather than formal logic. If this is not a sufficient answer to this argument, then ss 76A and 76B depend on the provisions of an environmental planning instrument. The singular "instrument" in the sections includes the plural "instruments" (s 8(b) of the Interpretation Act 1987). Accordingly, the sections, irrespective of s 36, have to be read as effectively saying "if environmental planning instruments so provide…". For the reasons given above, I do not accept the defendants' approach to the sections as requiring the words "if not an existing or continuing use" to be read in as part of the general statement of liability; they are exceptions to liability. 26 Accordingly, the lack of existing or continuing use rights is not an element of the offence that must be proved beyond reasonable doubt by the prosecutor. Nor is it a defence equivalent to cases in which the defendant must do no more than point to a real possibility in the evidence (the evidential burden) in which event the prosecutor must negative the possibility beyond reasonable doubt. Consistent with the authorities discussed above, it is a matter for the defendants to bring themselves within the exception of existing or continuing use rights on the balance of probabilities and they bear the onus of so doing. **************************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.