Moseley v Queanbeyan-Palerang Regional Council

1. [1]

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

2. [2]

   R A HULME J: I agree with Button J.

3. [3]

   BUTTON J:

Introduction

1. [4]

   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. [5]

   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. [6]

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

Leave to extend time?

1. [7]

   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. [8]

   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. [9]

   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. [10]

   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. [11]

   The amended statement of charge was as follows:

4. [12]

   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:

5. [13]

   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.

6. [14]

   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).

7. [15]

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

8. [16]

   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.

9. [17]

   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.

10. [18]

    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.

11. [19]

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

12. [20]

    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. [21]

   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. [22]

   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.

3. [23]

   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:

4. [24]

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

5. [25]

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

6. [26]

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

7. [27]

   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:

8. [28]

   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:

9. [29]

   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:

10. [30]

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

11. [31]

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

12. [32]

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

13. [33]

    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:

14. [34]

    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:

15. [35]

    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.

16. [36]

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

17. [37]

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

18. [38]

    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:

19. [39]

    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.

20. [40]

    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.

21. [41]

    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”).

22. [42]

    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.

23. [43]

    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.

24. [44]

    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.

25. [45]

    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.

26. [46]

    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.

27. [47]

    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. [48]

   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. [49]

   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. [50]

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

4. [51]

   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. [52]

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

6. [53]

   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.

7. [54]

   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”.

8. [55]

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

9. [56]

   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”.

10. [57]

    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.

11. [58]

    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.

12. [59]

    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.

13. [60]

    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.

14. [61]

    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.

15. [62]

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

16. [63]

    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.

17. [64]

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

18. [65]

    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)”.

19. [66]

    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.

20. [67]

    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:

21. [68]

    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.

22. [69]

    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. [70]

   Question 1 of the stated case is as follows:

2. [71]

   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.

3. [72]

   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.

4. [73]

   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:

5. [74]

   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”.

6. [75]

   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).

7. [76]

   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).

8. [77]

   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.

9. [78]

   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.

10. [79]

    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.

11. [80]

    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.

12. [81]

    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.

13. [82]

    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:

14. [83]

    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.

15. [84]

    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.

16. [85]

    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.

17. [86]

    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.

18. [87]

    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.

19. [88]

    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.

20. [89]

    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.

21. [90]

    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.

22. [91]

    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.

23. [92]

    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:

24. [93]

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

25. [94]

    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.

26. [95]

    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.

27. [96]

    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.

28. [97]

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

29. [98]

    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.

30. [99]

    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.

31. [100]

    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.

32. [101]

    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.

33. [102]

    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.

34. [103]

    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.

35. [104]

    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.

36. [105]

    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.

37. [106]

    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.

38. [107]

    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.

39. [108]

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

40. [109]

    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]:

41. [110]

    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”.

42. [111]

    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.

43. [112]

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

44. [113]

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

45. [114]

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

46. [115]

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

47. [116]

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

48. [117]

    Any agricultural use of the land was only speculative.

49. [118]

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

50. [119]

    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.

51. [120]

    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.

52. [121]

    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.

53. [122]

    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.

54. [123]

    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

1. [124]

   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. [125]

   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.

3. [126]

   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.

4. [127]

   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.

5. [128]

   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.

6. [129]

   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.

7. [130]

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

Question 3 – Particular (b) – Shed site

1. [131]

   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. [132]

   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. [133]

   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. [134]

   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.

5. [135]

   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.

6. [136]

   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.

7. [137]

   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.

8. [138]

   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”.

9. [139]

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

Question 4 – Finding in regard to purpose

1. [140]

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

2. [141]

   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. [142]

   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.

4. [143]

   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.

5. [144]

   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.

6. [145]

   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.

7. [146]

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

8. [147]

   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.

9. [148]

   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.”

10. [149]

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

Conclusion and proposed orders

1. [150]

   I propose the following order:

   1. (1)

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

2. [151]

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

   1. (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. (2)

      Question 2: No.

   3. (3)

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

   4. (4)

      Question 4: Inappropriate to answer.