Citation: Moseley v Queanbeyan-Palerang Regional Council [2019] NSWCCA 42
Court: Court of Criminal Appeal
Date: 1 March 2019
Judges: Hoeben CJ at CL, R A Hulme J, Button J
Background
The appellant was a property owner who carried out a series of earthworks on a rural property near Royalla, New South Wales. Those works included excavating a shed site, constructing a creek crossing, creating stockpiles of spoil, and forming a track up a hillside. He did not obtain development consent before commencing any of this work.
The respondent, the Queanbeyan-Palerang Regional Council, issued a penalty infringement notice in June 2015 alleging development without consent. After the matter progressed through the Local Court, the appellant was convicted, fined $15,000, and ordered to pay costs. He appealed to the Land and Environment Court, where Pain J dismissed the conviction appeal on most particulars but reduced the fine to $4,000 on sentence.
Pain J then submitted four questions of law by way of stated case to the Court of Criminal Appeal under s 5BA of the Criminal Appeal Act 1912 (NSW). The questions concerned the correct legal approach to whether the works were ancillary to permitted development, and whether the court below had improperly reversed the onus of proof.
Legal Issues
- Whether Pain J erred in law by finding that the earthworks were not ancillary to development permitted without consent under the applicable statutory instruments
- Whether Pain J improperly reversed the onus of proof onto the appellant when assessing his exculpatory arguments
- Whether a question concerning the sufficiency of evidence to support a factual finding was an appropriate question of law for determination under a stated case
Decision
On the first question, the Court of Criminal Appeal found no error of law. The appellant argued that his earthworks should have been characterised as ancillary to development that did not require consent. The court rejected this, confirming that Pain J's analysis of the interlocking statutory instruments, including the Palerang Local Environment Plan 2014 and the relevant State Environmental Planning Policy, was legally correct.
On the second question, the court found no reversal of the onus of proof had occurred. The respondent had accepted, and the court confirmed, that once an appellant raises an exculpatory circumstance and discharges the evidential burden of pointing to it sufficiently, the prosecutor bears the burden of disproving it beyond reasonable doubt. Pain J's approach was consistent with that principle.
The third question asked whether evidence tendered at the Local Court hearing could support a particular finding of fact. The court answered "no" to the first limb and found the second limb did not arise. On the fourth question, the court declined to answer it at all. Button J held that a stated case is confined to pure questions of law, not to fact-dependent evaluations of evidence. Since none of the Local Court or Land and Environment Court evidence had been placed before the Court of Criminal Appeal, and since the question required an assessment of the evidence rather than a legal determination, answering it fell outside the proper scope of a stated case.
Orders Made
- Leave to extend time to submit the stated case was granted
- Question 1: No (no error of law in finding the works were not ancillary to development permitted without consent)
- Question 2: No (no reversal of onus)
- Question 3: (i) No; (ii) Does not arise
- Question 4: Inappropriate to answer
Key Takeaways
- No error of law was established in Pain J's conclusion that earthworks of the kind in question were not ancillary to development permitted without consent under the applicable planning instruments.
- Under the onus of proof framework accepted in this matter, once a defendant raises an exculpatory circumstance with sufficient evidential foundation, the prosecution must disprove it beyond reasonable doubt. The Court of Criminal Appeal confirmed that Pain J applied this framework correctly.
- A stated case under s 5BA of the Criminal Appeal Act 1912 (NSW) is confined to pure questions of law. It is not an appropriate vehicle for asking a superior court to evaluate whether evidence in a lower court hearing was capable of supporting a particular finding of fact.
- Where no evidence from the original proceedings is placed before the Court of Criminal Appeal (consistent with ordinary stated case procedure), the court cannot and will not embark on a fact-based inquiry into the sufficiency of that evidence.
- Despite significant delay in filing the stated case, the Court of Criminal Appeal granted leave to extend time because the matter raised important questions about environmental law and the proper nature of the stated case procedure.
Legislation and Cases Referenced
Legislation:
- Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 125
- Criminal Appeal Act 1912 (NSW), s 5BA
- Crimes (Appeal and Review) Act 2001 (NSW), s 31
- Palerang Local Environment Plan 2014 (NSW)
- State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW)
Cases:
- 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