Citation: Heatscape Pty Ltd v Mahoney [2017] NSWCCA 135
Court: Court of Criminal Appeal, NSW
Date: 16 June 2017
Judges: Gleeson JA; Rothman J; Button J
Background
Heatscape Pty Limited owned premises at 76 Church Street, Gloucester, located within an area designated as the Gloucester Main Street Precinct. In June 2012, Heatscape removed an external sash window and replaced it with a larger window of different dimensions, without first obtaining development consent. Gloucester Shire Council alleged this work contravened cl 5.10(2)(a)(iii) of the Gloucester Local Environmental Plan 2010 (GLEP), which required development consent for work on a building within a heritage conservation area.
Heatscape was convicted in the Local Court and fined $12,000, with costs of $24,000 also ordered. On appeal to the Land and Environment Court, the conviction and sentence were upheld by Pepper J. The Land and Environment Court then stated a case to the Court of Criminal Appeal, raising two questions of statutory construction.
The central dispute was whether, to establish the offence, the prosecution had to lead evidence that the relevant area was actually of heritage significance, or whether it was enough to show that the area appeared in Schedule 5 of the GLEP as a "Heritage Conservation Area".
Legal Issues
- Whether cl 5.10(2)(a)(iii) of the GLEP required the prosecution to prove the heritage significance of the Gloucester Main Street Precinct as an independent element of the offence.
- Whether Schedule 5 of the GLEP sufficiently described the location and nature of the Gloucester Main Street Precinct as a heritage conservation area, as required by the definition of that term in the GLEP Dictionary.
Decision
On the first question, the Court confirmed the construction adopted by Pepper J below. The term "heritage conservation area" in cl 5.10(2)(a)(iii) is not an independent element of the offence that the prosecution must prove through evidence of actual heritage significance. Rather, the term functions as a label describing a category of area already identified in Schedule 5 of the GLEP. Once an area is listed in that schedule, the statutory description is engaged without any further proof of heritage merit.
The Court reasoned that statutory terms must be read in context, not in isolation. The definition of "heritage conservation area" in the GLEP Dictionary refers to land described in Schedule 5, not to land that a court must independently assess as possessing heritage significance. Construing the definition otherwise would require courts to conduct their own heritage assessments, a role that belongs to the plan-making process rather than to criminal proceedings.
On the second question, the Court found that Part 2 of Schedule 5 of the GLEP sufficiently described the location and nature of the Gloucester Main Street Precinct. The schedule adequately identified the area as a heritage conservation area for the purposes of the GLEP's definition, and no additional description was required to satisfy that definition.
Orders Made
- The stated case was dismissed.
- The two questions of law were answered in favour of the respondent: proof of actual heritage significance is not required under cl 5.10(2)(a)(iii), and Schedule 5 of the GLEP sufficiently describes the heritage conservation area.
- The applicant (Heatscape) was ordered to pay the respondent's costs of the proceedings.
Key Takeaways
- Under cl 5.10(2)(a)(iii) of the Gloucester Local Environmental Plan 2010, the prosecution does not need to prove independently that an area possesses heritage significance; listing in Schedule 5 of the plan is sufficient to establish that the area qualifies as a "heritage conservation area".
- Statutory definitions must be construed in context: the Court of Criminal Appeal rejected an interpretation that would have stripped the term "heritage conservation area" of its descriptive function within the GLEP's own structure.
- Where a local environmental plan designates an area in its schedule, that designation carries legal effect in enforcement proceedings without the courts being required to conduct a merits assessment of the heritage values underpinning it.
- Schedule 5 of the GLEP was found to sufficiently describe both the location and nature of the Gloucester Main Street Precinct, satisfying the definitional requirements of the plan.
- The Court noted, without deciding, that questions may arise about the capacity to mount a collateral challenge to the validity of an environmental planning instrument in prosecution proceedings, with reference to Kirk and R v Commonwealth Industrial Court Judges; Ex parte Cocks, but those issues were not before it and were left open.
Legislation and Cases Referenced
Legislation
- Environmental Planning and Assessment Act 1979 (NSW), s 76A(1)
- Gloucester Local Environmental Plan 2010, cl 5.10, Schedule 5
- Crimes (Appeal and Review) Act 2001 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5BA
- Evidence Act 1995 (NSW)
Cases
- Kirk v Industrial Relations Commission of NSW; Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW (2010) 239 CLR 531; [2010] HCA 1
- R v Commonwealth Industrial Court Judges; Ex parte Cocks (1968) 121 CLR 313; [1968] HCA 86
- Australian Heritage Commission v Mt Isa Mines Ltd (1997) 187 CLR 297; [1997] HCA 10
- CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55
- Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155
- Environmental Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (2014) 86 NSWLR 499; [2014] NSWCA 149