Environment Protection Authority v Alkem Drums Pty Ltd
[1999] NSWLEC 26
•30 April 1999
Land and Environment Court
of New South Wales
CITATION:
Environment Protection Authority -V- Alkem Drums Pty Ltd [1999] NSWLEC 26
PARTIES
Prosecutor:
Environment Protection AuthorityDefendant:
Alkem Drums Pty Ltd
NUMBER:
50028 of 1998
CORAM:
Talbot J
KEY ISSUES:
:- whether continuing offence
Environmental Offences:- whether offence known to law
Environmental Offences:- duplicity
Environmental Offences:- whether failure to comply with notice issued under Clean Waters Regulation 21 is a breach of the regulation
LEGISLATION CITED:
whether continuing offence
Environmental Offences:- whether offence known to law
Environmental Offences:- duplicity
Environmental Offences:- whether failure to comply with notice issued under Clean Waters Regulation 21 is a breach of the regulation
DATES OF HEARING:
12/14/1998; 01/15/1999; 02/10/1999; 02/23/1999; 03/01/1999; 03/24/1999; 04/06/1999
DATE OF JUDGMENT DELIVERY:
04/30/1999
LEGAL REPRESENTATIVES:
Defendant:
Prosecutor:
Mr S C Simington (Solicitor)
Solicitors:
Stephen Garrett
Environment Protection Authority
Mr D S Timmins (Barrister)
Solicitors:
n/a
JUDGMENT:
Contents
- The evidence
- The offence particularised in the summons
- The standing of the proceedings
- Whether the offence charged is a continuing offence
- The legal status of the charge
- Request to state a case
- Orders
IN THE LAND AND MATTER No. 50028 of 1998
ENVIRONMENT COURT CORAM: Talbot J
OF NEW SOUTH WALES DECISION DATE: 30 April 1999
1. The defendant company appears to answer the charge that on or about 1 May 1997 and continuing until 8 September 1997 at St Marys in the State of New South Wales it committed an offence against the Environmental Offences and Penalties Act 1989 (the EOP Act) in that, being the occupier of premises, it did not comply with a requirement made pursuant to cl 21(1) of the Clean Waters Regulation 1972 (the Regulations) contrary to cl 21(3) of the said Regulations.
2. Mr Timmins of counsel appeared for the defendant who has entered a plea of guilty.
4. Regulation 21 provides as follows:-3. Section 36 of the Clean Waters Act 1970 (the CW Act) provides that the Governor may make regulations not inconsistent with the Act for or with respect to, inter alia, requiring or empowering the Authority to require, that measures be undertaken (including, but without affecting the generality, the provision, installation, maintenance or operation of traps, arrestors, separators, screens, filters, walls, dams, embankments, trenches, and areas for the treatment, dispersal or disposal of any matter) so as to prevent or reduce, or likely to prevent or reduce, the discharge or likely discharge of pollutants into waters from any premises.
21(1) Where pollutants are being or are likely to be discharged into waters from any premises, the Commission may, by notice in writing, require the occupier of those premises to do any one or more of the following, namely-Control of discharge of pollutants from premises
(a) …
(b) …
(c) erect, alter or remove any walls in, on or from those premises or erect, alter or remove any dams, embankments, trenches or other works used in connection with those premises for the storage, treatment or disposal of those pollutants;
(d) …
(e) …
(g) undertake such measures as will, in the opinion of the Commission, control or prevent the discharge or likely discharge of those pollutants,(f) …; or
- within such time and in such manner as may be specified in the notice.
(1A) The Commission may, by notice in writing, revoke or vary a notice referred to in clause (1).
(3) An occupier of premises who does not comply with a requirement of a notice referred to in clause (1) or such a notice as varied under clause (1A), as the case may require, is guilty of an offence and is liable-(2) A notice referred to in clause (1) or such a notice as varied under clause (1A), as the case may require shall be served in the manner specified in section 31 of the Act.
(b) if any other person - to a penalty not exceeding $1,000 and, in the case of a continuing offence, to a further penalty not exceeding $200 for each day the offence continues.(a) if a corporation - to a penalty not exceeding $4,000 and, in the case of a continuing offence, to a further penalty not exceeding $1,000 for each day the offence continues; and
5. Pursuant to s 36(3) of the CW Act, any person who contravenes a provision of a regulation is guilty of an offence against the EOP Act and is liable for the penalty imposed by the Regulations in respect of the offence in accordance with the EOP Act.
7. Section 8B of the EOP Act provides:-6. An offence under the CW Act is a Tier 2 offence.
(1) Any person who (by virtue of any provision of the Clean Waters Act 1970) is guilty of an offence against this Act is liable:8B Offences under the Clean Waters Act 1970
(b) in the case of an individual - to a penalty not exceeding $60,000 and, in the case of a continuing offence, to a further penalty not exceeding $30,000 for each day the offence continues.(a) in the case of a corporation - to a penalty not exceeding $125,000 and, in the case of a continuing offence, to a further penalty not exceeding $60,000 for each day the offence continues, or
(3) A regulation under the Clean Waters Act 1970 may impose a penalty not exceeding -
(2) …
(b) $20,000 in the case of a corporation,(a) $10,000 in the case of an individual, or
- in respect of a contravention of the regulation.
9. It is instructive to set out the recitals to the notice because they assist with an understanding of the effect of the notice and the undisputed history leading up to the issue of the notice.
8. A notice purporting to made be under reg 21 was issued to the defendant by the prosecutor on 25 February 1997.
(a) ALKEM DRUMS PTY LTD is the occupier of the premises situated at LOTS 5 & 9 BENT STREET, ST MARYS ( "the premises" ) used for DRUM OR CONTAINER RECONDITIONING WORKS from which pollutants are being or are likely to be discharged into waters.
(b) An inspection of the above premises was undertaken on 22 February, 1994. The inspection revealed that ground contamination and pollution of waters may occur as a result of leakages occurring from drums which are stored on site in unbunded and unroofed areas.
(c) A Regulation 21 Notice under the Clean Waters Regulations, 1972 was issued to Alkem Drums Pty Ltd in relation to the above premises on 16 March, 1994.
(d) A further inspection of the above premises was undertaken on 21 December, 1994. The inspection revealed that no bund had been constructed in accordance with Condition 2 attached to the previous Regulation 21 Notice dated 16 March, 1994.
(e) On 5 September, 1995 a further Regulation 21 Notice under the Clean Waters Regulations, 1972 was issued to Alkem Drums Pty Ltd in relation to the above premises. The Regulation 21 Notice required Alkem Drums Pty Ltd to erect a bund at the premises by 29 September, 1995.
(f) On 16 November, 1995 an inspection of the above premises was undertaken by Mr Ken Hardy, an officer of the Environment Protection Authority (EPA). The inspection revealed that no bund had been constructed in accordance with the Conditions attached the Regulation 21 Notice dated 5 September, 1995.
(h) On 31 January 1997, Mr Hardy again attended at the above premises. An inspection of the premises revealed that (a) no bund had been constructed at the premises (b) drums in a poor or leaking condition were situated in unbunded areas where the contents of the drums could be washed into waters by rain water runoff.(g) On 2 May 1996, Mr Hardy was required to attend at the above premises. An inspection of the premises revealed that a surfactant had leaked from a container and was washed into the stormwater system. The container was not located within a bunded area. Alkem Drums Pty Ltd was convicted for pollution of waters contrary to Section 16(1) of the Clean Waters Act 1970, in respect of this incident on 29 November, 1996.
10. By the notice, the defendant was required to do the following:-
- a) by 30 April 1997:-
ii) refrain from causing, permitting or allowing any drums containing chemicals to be brought onto the premises; ori) remove all drums which contain any residual chemicals from the premises; and
b) (i) by 30 April 1997, erect a bund wall at the premises such that:
- (a) the walls of the bund are at least 100 mm in height; and
(b) the walls of the bund are impervious;
(iii) cause all drums at the premises containing any residual chemicals to be stored at all times within the bunded area unless such drums are at that time:(ii) by 15 May 1997, construct a roof impervious to rain over the area delineated by the bund wall ("the bunded area") such that no rain falling on the roof will enter into the bunded area;
- (a) being processed at the premises by way of cleaning or refurbishing; or
(b) in the process of being loaded or unloaded onto a vehicle or transported by a vehicle to, from or around the premises.
11. The matter was mentioned before me on a number of occasions and adjourned in order to allow the defendant an opportunity to complete the work referred to in paragraphs (b)(i) and (ii) before a final hearing. On 14 December 1998, when the matter finally proceeded, the defendant conceded that the work had not been completed. Drums continued to be stored in unbunded and unroofed areas on the site.
12. It is agreed between the parties that it is appropriate to make an order pursuant to s 14(1) of the EOP Act to require the defendant to take the necessary steps to complete outstanding work by 30 April 1999. Obviously that is not now practicable in the light of subsequent events and the passage of time since the Court was told of the agreement.
13. The defendant has agreed to pay the prosecutor’s costs in the sum of $5 500.
14. Stephen James Fermio was employed as the Head of Western Operations Unit of the Outer Sydney Region of the prosecutor on 25 February 1997. Before causing the notice to be issued pursuant to cl 21(1) of the Regulations, Mr Fermio decided that the requirements of the notice were necessary because:-The evidence
(a) it represented a reasonable compromise between allowing the operation conducted by the defendant at the premises to continue and ensuring adequate safeguards to protect the environment were in place;
(c) he was informed that the EPA sought an order substantively to the same effect as the requirements of the Notice in proceedings 50055/96 pursuant to s. 14 Environmental Offences and Penalties Act but that the order had neither been made nor refused to be made by the court.(b) the defendant had, to the best of Mr Fermio's knowledge, failed to conduct any of the work to prevent such pollution incidents occurring, notwithstanding the two previous notices having been issued to the defendant over a period of three years which required substantially that same work to be conducted; and
15. A principal of the company, Clement William Patrick Kemp, explained that the delay had been caused by lack of funds, particularly as the company was required to clean up another site which it had leased. The cost of cleaning up the first site seriously constrained his ability to comply with the subject notice within the prescribed time. He explained that the company runs a very small family business. The only shares are owned by Mr Kemp and his wife.
16. Approximately six months prior to the hearing date the defendant employed Alfred Earnest Fish to act as project manager and to engage the necessary consultants to enable architectural drawings and structural drawings to be prepared for submission to Penrith Council in support of a development application to obtain the consent necessary before the work could be performed. Development consent has been obtained, but a number of conditions remain outstanding before a construction certificate will be issued. Mr Fish expressed a hope that the works could be finished by the end of February 1999 but, in order to be realistic, a later target date should be set.
17. In the meantime the works specified in the notice had not been completed at the date of the hearing and the defendant continues to carry on its business activities at the premises. These include storage of drums and the receipt of further drums for processing.
The offence particularised in the summons
18. Notwithstanding the plea of guilty, it is nevertheless incumbent upon the Court to identify the offence and to make an express finding as to how it occurred in order to determine the appropriate penalty ( Axer Pty Ltd v Environment Protection Authority CCA60763 of 1992 22 November 1993 Unreported).
19. The charge set out in the summons is that the defendant committed an offence against the EOP Act in that, being the occupier of premises, it did not comply with a requirement made pursuant to cl 21(1) of the Regulations. The requirement is particularised as the notice issued pursuant to cl 21(1) dated 25 February 1997.
20. The notice contains a number of requirements. Requirement (b) is expressed as an alternative to requirement (a).
21. Although the set out and language of the requirements in the notice are not as concise as they could have been, it is nevertheless clear that, as the bund wall and roof referred to in requirement (b) were not completed by the specified dates, the defendant became obliged to remove the drums referred to in (a)(i), and to refrain from bringing on to the premises the drums referred to in requirement (a)(ii), by 30 April 1997.
22. The evidence establishes the storage of drums on the premises after 30 April 1997. There is non-specific evidence directed to the act of bringing drums onto the premises after that date when Mr Kemp admitted in a record of interview on 9 September 1997 that other drums continued to come onto the site after 30 April 1997.
23. Although the prosecutor relies on the failure to construct the bunding or erect the roof as part of the circumstances which gave rise to the failure to comply with the notice, it is not suggested that those omissions are relevantly part of the offence. The evidence nevertheless concentrates on the reason for the failure to carry out the work by the due date. If the work had been done by 30 April 1997 (and maybe 15 May 1997 in the case of the roof), then requirement (b) would have operated to supersede requirement (a).
24. Following the plea of guilty, the Court’s primary task is to impose a penalty. The explanation for the failure to build the bund and roof, subject to matters raised later, is at least relevant in that respect.
25. When read strictly reg 21 only authorises the EPA, by notice in writing, to require the occupier to do any of the particular things referred to. It has not been contended that failure to comply with a notice is not a contravention of the regulation within the meaning of s 36(3). The hearing has proceeded on the basis that the failure to comply with the subject notice is an offence pursuant to reg 21(3).
The standing of the proceedings
26. During submissions on the last day of the hearing the Court raised the question whether the offence could be properly regarded as a continuing offence, thereby exposing the defendant to a further penalty claimed by the prosecutor of $1 000 for each day the offence continues as provided by reg 21(3)(b) subject to the maximum of $20 000 prescribed in s 8B 3(b) of the EOP Act.
27. The prosecutor requested an opportunity to make further submissions and to consider a request for a case to be stated under s 5BA of the Criminal Appeal Act 1912 if the Court rejects the prosecutor’s argument in respect of the continuing nature of the offence. Written submissions were provided on 15 January 1999.
28. On 23 February 1999, unaided by authority, the Court provided a preliminary view that the offence was not a continuing one. Apparent inconsistencies between the provisions of the regulation, the requirements of the notice and the particulars of the charge were also referred to.
29. Mr Timmins appeared on 23 February 1999 to inform the Court he no longer has the necessary instructions to make further submissions.
30. The prosecutor was again granted leave to make further written submissions. Further written submissions attributed to D A Buchanan QC, as counsel for the prosecutor, have been received. Mr Buchanan did not appear at the hearing.
31. The further written submissions deal comprehensively with the issue of whether there is a continuing offence and raise serious questions of duplicity, variance and election. The prosecutor says it became alerted to the latter questions during preparation of the further written submissions.
32. The Court understands that a copy of the prosecutor’s further submissions have been delivered to Mr Timmins. No submissions in reply have been forthcoming from the defendant notwithstanding that the express opportunity to do so was offered to it in the presence of Mr Timmins. The time allowed has expired. The Court has no reason to believe that Mr Timmins has not appraised the defendant of the position.
33. I propose to proceed to a determination of the matters raised by the further written submissions notwithstanding there is no contradictor.
Whether the offence charged is a continuing offence
34. The offence created by reg 21(3) is that an occupier of premises who does not comply with a request of a notice referred to in cl (1) or such a notice as varied under cl (1A), as the case may be, is guilty of an offence.
36. Ex Parte Schaefer; Re Field & Anor (1943) 60 WN (NSW) 99 concerned a failure to enrol in the reserve forces after the issue of a notice under the defence legislation. The relevant part of a regulation made under the Defence Act provided as follows:-35. Setting aside for the moment the question of whether the charge to which the defendant has pleaded guilty discloses an offence known to the law, the prosecutor submits that requirement (a)(i) of the notice should be construed as continuing to call for compliance notwithstanding expiration of its deadline for compliance fixed by the notice. In the circumstances of this case therefore, the offence created by reg 21(3) should be construed as a continuing offence rather than as a ‘once and for all’ offence. Further according to the prosecutor, there is nothing in the provisions or their history which prevents reg 21(3) from operating according to its tenor - that is to say, explicitly providing that, or confirming that the offence created is a continuing offence.
- (4) Every person who is required to enrol in accordance with a notice issued under this regulation shall enrol within thirty days after the issue of the notice.
37. Paragraph (9) provided that any person who failed to enrol in accordance with the regulation shall be guilty of an offence.
38. It was argued that the regulation was only part of the machinery to give effect to the general requirement of enrolment and that the offence was failure to enrol, the dates and times specified in the notice were merely particulars, or that the effect of the provision as to enrolment within 30 days was merely to relieve from the penalty those who do so within that time.
39. Herron J found that an examination of the regulation showed the obligation to enrol depends on the issuing of a notice by the military board as opposed to the liability to enlist and serve. Upon the expiration of the 30 days after the issue of the notice, the offence was complete.
40. It is clear from the judgment that the decision rested upon the construction and interpretation of the particular summons and the regulation.
41. In Sloggett v Adams (1953) 70 WN (NSW) 206 the full court considered the effect of s 473 of the Local Government Act 1919 which, in subs (4), directed that an owner or occupier on whom a notice to eradicate noxious plants is served is to comply with the requirements of the Act. The giving of the notice was provided for by subs (3) and it was to be in or the effect of the form prescribed by the ordinance and it could specify different periods of time within which noxious plants shall be eradicated to the satisfaction of the council from particular parts of the land and may also have specified certain other matters such as the means and measures to be adopted and generally giving directions as to the matter of eradication of plants such as in the opinion of the council are necessary in the circumstances. The only requirement in the subject notice was that the named noxious plants should be eradicated within 28 days.
42. Taking the same line of authority as Schaefer , the Court adopted the test whether the gravamen of the offence is to be found in something which the offender can, at will, discontinue. Applying that test to the Local Government Act section, Street CJ found that the offence was the failure to comply with the requirements of the notice. He observed that the offence was not a mere failure to eradicate generally, but rather it was a failure to eradicate within the prescribed time, that is, within the 28 days. At that moment the offence was complete and concluded and thereafter it existed only in the past. If the offence were a continuing one it would be one which could be remedied after the relevant date. He pointed out that if the contrary argument were right, a defendant could be prosecuted at any time, even years afterwards.
43. Owen J agreed with Street CJ. He could see no distinction in principle between a breach of covenant to put premises in repair which only gives rise to one breach. He also referred to the apprehension that if the case was one of a continuing offence then the offence was one which the land holder could never stop committing. Nothing he could do after the 28 days had expired could ever be a compliance with the notice.
44. Clancy J, who also agreed with the Chief Justice, saw the test as being to inquire whether the offender could, at will, cease to offend.
45. In Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449 the Court of Criminal Appeal had to consider whether a failure to provide a report to a liquidator in the prescribed form within the specified time pursuant to s 375 of the Companies (NSW) Code should be construed as a continuing offence.
46. At the outset it should be noted that s 571 of the Code expressly provided that the failure to do an act within the period or before a specific time referred to constituted an offence and that the obligations to do the act continued notwithstanding that the period had expired.
47. However, Hunt J expressed the opinion that, even without reference to s 571, the offence created by s 375 should be construed as a continuing one when regard is had to the purpose of the statutory obligation which was, clearly enough, to provide the liquidator with information which it is unlikely that he could obtain elsewhere.
48. It is the prosecutor’s contention that Ganke is a decision of the Court of Criminal Appeal which lays down a relevant principle directly applicable to this case and is therefore binding on this Court.
49. Hunt J expressly followed the decision of the majority of the Full Court of South Australia in Leydon v Forrest (1980) 23 SASR 364.
50. In Leydon Mitchell J firstly heard an appeal against the dismissal of a complaint by a Magistrate in respect of the charge that the defendant, being the secretary of the company, did not submit to the liquidator of the company, within 14 days of the date of the winding up order, a statement in the prescribed form verified by statutory declaration as to the affairs of the company as at the date of the winding up order contrary to s 234 of the Companies Act 1962 - 1974 (SA). Her Honour was not able to find that an offence under s 234 for which a default penalty was prescribed is a continuing one.
51. On further appeal, King CJ delivered the leading judgment of the Full Court. He identified the purpose of the section as being to enable the liquidator to obtain information concerning the affairs of the company. This was done by creating an obligation to provide a statement as to the affairs of the company verified by statutory declaration. Further the obligation to submit the statement of affairs did not arise until the expiration of the 14 day period or any extended period. However there was no provision for the termination of the obligation and, accordingly, on a natural reading of the section, the obligation continues until complied with upon the supposition that the liquidator’s need for the information in the statement continued until it was received.
52. King CJ referred to Sloggett noting that the offence in that case was a failure to comply with the notice. The notice did not seek to impose a continuing obligation but directed that the required action be taken within the specified time.
53. Reference was made to Jones v Lorne Saw Mills Pty Ltd [1923] VLR 58 where Cussen J at 65 pointed out that “a statute may indicate by its general terms that an offence is or may be a continuing one” . Cussen J was considering the Commonwealth Conciliation and Arbitration Act where the defendant was charged with a failure to observe the terms of an award. It was argued that the information was out of time by reason of a statutory provision that an information must be brought within one year of the commission of the offence. Cussen J found that up to the date of information there was but one offence - “namely ‘non-observance’, an offence in which the time element is extensible so as to provide a real continuum” .
55. King CJ also referred to a decision of the Queen’s Bench Divisional Court in Penton Park Homes Ltd v Chertsey Urban District Council (1973) 72 LGR 115 where the defendant was charged with a failure to comply with a condition of a licence which required certain works to be carried out within 12 months from the date of the licence. In that case Bridge J found it impossible to resist the conclusion that Parliament had intended the offence of failing to comply with a condition requiring site licence work to be completed within a specific period to be a continuing offence. He said:-54. King CJ also referred to the decision in Reg v Industrial Appeals Court; ex parte Barelli’s Bakeries Pty Ltd [1965] VR 615 where the Victorian Full Court found that an offence of failing to pay, within the time prescribed, the amount of wages prescribed by the Wages Board determination is a continuing offence because the employer’s duty of paying the monies when they became due and payable operates throughout the period from the time fixed for payment until actual payment. The breach of it begins at the time fixed for payment but continues on. A distinction was drawn between, on the one hand, an offence which, once committed, is complete and concluded and exists only in the past, and, on the other hand, an offence constituted by a continuing breach of duty to take action to put an end to a forbidden state of affairs.
- To say that an offence which relates to a positive action performed on a particular day is a once and for all offence is one thing; to say the same about a failure to perform an act which an offender is required by law to perform is quite another.
56. After considering the above authorities, King CJ summed up at 375 as follows:-
- I think that these authorities indicate, as one would expect as a matter of legal principle, that the question whether non-compliance with a legal duty which must be performed within a prescribed time is a continuing offence or a once and for all offence must be answered by reference to the language of the section creating the offence and the context in which it is found. In general, it is to be expected that a failure to do some act which the person is required by law to do will be a continuing offence. The offence of non-compliance with a continuing statutory duty will continue so long as the non-compliance continues.
57. Sangster J referred to the Victorian case of Welsh v Cornfoot [1973] VR 21 (relied upon by Mitchell J) in which Lush J held that the offence of failing to comply with a requirement to lodge a return of allotment of shares within one month was complete at the expiration of the time prescribed and therefore was non-continuing or non-continuous in nature. Sangster J found himself unable to agree with Lush J as to the consequences of that situation - certainly in relation to s 234 of the South Australian legislation which he said imposes on the officer in question an obligation to make and submit a statement of affairs in the prescribed form, and clearly, in his opinion, its availability to the liquidator is sometimes more important than its availability within 14 days or any other precise time.
58. However, Mohr J found himself in agreement with Mitchell J having considered the judgment of Lush J in Cornfoot . Referring in particular to Schaefer he observed that even where the most cogent and urgent reasons for compliance with an obligation to do an act within a specified time exist, still the offence is not a continuing one unless it be clear from the statute making it an offence.
59. Joske J in Brammer v Deery Hotels Pty Ltd (1974) 22 FLR 276 accepted the decision of Cussen J in Jones v Lorne Saw Mills as correct. The offence charged was that, monies having become due and payable, an employer failed to perform the duty imposed by the legislation of paying them to the employee within the time limitation provided. He found that the duty is one which operates throughout the period from the time fixed for payment until actual payment.
61. In Cook v Cook (1923) 33 CLR 369 the defendant was charged with failing to make weekly payments of maintenance. He objected that the information was not made within 12 months as required by s 210 of the Justices Act 1915. The court held that the disobedience was a continuing act. Isaacs J at 381 said:-60. The opinion expressed by Cussen J in Jones v Lorne Saw Mills that non-observance of a determination was a continuing act was expressly approved by Starke J in Ingamells v Petroff (1934) 50 CLR 451 at 459.
- It is not like some offence which, once committed, is complete and ended, and exists only in the past. It resembles a debt which, though payable a month ago, is still payable.
62. The alleged offence is the failure to comply with the requirements of a notice. Taking the line of authority from Sloggett , the offence was not a mere failure to meet the requirements of the notice generally, but rather it was a failure to comply by the specified date.
63. The obligation to carry out the requirements depends upon the issue of a notice pursuant to reg 21(1). Therefore, consistently with Schaefer , upon the expiration of the time stipulated in a notice, the offence is complete.
64. Cases such as Ganke and those relied upon by Hunt J can be distinguished because they deal with an obligation created by the statute itself. The legislation in those cases specifically identified what the requirement was without any necessity for the issue of a notice whereas, pursuant to reg 21, that is a matter left to the EPA.
65. I have some reservation about ignoring the difference between a positive action and the failure to perform an act in the context of a continuing offence as identified by Bridge J in Penton Park Homes . However, on balance, I prefer the approach taken in Schaefer and Sloggett where the offence alleged in each case was identical to the present, whether there is an alleged failure to comply with a specific notice within a stated time.
66. The terms of the notice itself, including as they do alternative requirements, do not readily lead to only one ultimate conclusion or the achievement of a single objective.
67. If the offence is a continuing one then erection of a bund and completion of the roof at any time could displace the alleged outstanding requirement to remove the drums. On the other hand, the removal of the drums would obviate the requirement for a bund or the roof. The imposition of time for completion of one or more of these requirements means that the defendant is not in a position where it could, at will, cease to offend ( Sloggett ). It first needs to know how the EPA expects it to act. After the passing of the nominated dates, the defendant cannot know from the notice itself which requirement it is expected to fulfil.
68. I note that s 8B(1) of the EOP Act expressly refers to a penalty for a continuing offence whereas s 8B(3) does not in terms contemplate that a penalty may be imposed for a continuing offence in respect of a contravention of the regulation pursuant to s 36(3) of the CW Act. This contrast is logical if there is no legislative intention to create a continuing offence in regard to breach of a regulation.
The legal status of the charge
69. The offence created by reg 21(3) is a failure to comply with a requirement of a notice. The requirements of the notice were that specified acts were to be performed by the dates referred to in the notice. The notice created a number of requirements in the alternative.
70. The summons particularises the requirement as being the notice issued pursuant to cl 21(1) of the Regulations. The prosecutor has not particularised which requirement in the notice has not been complied with. Furthermore, the particular requirement referred to in cl 21(1) of the Regulations has not been specified. Indeed the charge omits any reference to a notice. It merely refers to “a requirement”. There is also a patent disharmony between the date of 30 April 1997 referred to in para (a) and para (b)(i) of the notice and 15 May 1997 in para (b)(ii) and the lack of any time requirement in para (b)(iii).
71. The Court cannot be satisfied beyond reasonable doubt that the defendant either caused, permitted or allowed any drums containing chemicals to be brought onto the premises at a particular date.
72. The prosecutor has proved beyond reasonable doubt that the defendant failed to remove all drums which contain any residual chemicals from the premises by 30 April 1997. It has also proved beyond reasonable doubt that the bund wall referred to in para (b)(i) was not erected by 30 April 1997 and further that the roof specified by para (b)(ii) was not constructed by 15 May 1997.
73. It is also established beyond reasonable doubt that drums at the premises containing any residual chemicals are not stored in the manner required by para (b)(iii).
74. However, each one of the above matters which have been proved beyond reasonable doubt appear to constitute a separate and distinct offence from the others.
75. The charge referred to in the summons fails to disclose an offence known to the law as there is no obligation to comply with a requirement made pursuant to cl 21(1) of the Regulations. Regulation 21(1) sets out a number of requirements that may be the subject of a notice. It is only if an occupier of premises does not comply with a requirement of a notice referred to in cl (1) that an offence is committed pursuant to cl (3) of reg 21.
76. Section 36(3) creates an offence when any person contravenes a provision of a regulation. The summons specifies the contravention as being a failure to comply with a requirement made pursuant to cl 21(1) of the Regulations as distinct from a breach of the regulation itself.
77. There is no specific provision in reg 21 which requires any person to comply with its terms. Clause 21(3) of the Regulations refers to the offence by an occupier who does not comply with a requirement of a notice. It does not deal directly with a contravention of the provisions of reg 21 itself.
78. Not only does the summons, as presently framed, not refer to an offence known to the law, there is the further question, namely whether there can be an offence in contravention of reg 21 as contemplated in s 36(3).
79. Furthermore, for the reasons explained above the charge is bad for duplicity because the notice contains different requirements and no one requirement is relied upon in the summons.
80. The prosecutor has foreshadowed an application to amend the summons to overcome the defect in the charge and then to be put to its election in respect of the latent duplicity now exposed.
81. Until the defects are rectified, if they can be, it is not possible for the Court to make a final determination as to whether the offence is a continuing one within the meaning of reg 21(3)(a). For the reasons already given however, I am of the view that, if there is an offence which arises from the failure to comply with the notice, it is not a continuing offence.
82. The prosecutor, having foreshadowed an application to amend and thereafter to elect as to which of the requirements it chooses to rely upon, is hereby directed to take the necessary steps for amendment and election by way of Notice of Motion within seven days. Otherwise the summons will be dismissed.
83. If the application for leave to amend and elect is made, then the Court will give further consideration to the exercise of its discretion to reverse its decision to accept the plea of guilty after the application has been dealt with.
84. I agree with the prosecutor’s concession that the defendant’s plea of guilty is not determinative of the legal question as to whether the offence is a continuing one. If that determination is made contrary to the arguments and submissions put by the prosecutor, the plea of guilty must be rejected.
Request to state a case
85. In the meantime, the prosecutor should also give consideration to whether it requires the Court to state a case for the opinion of the Court of Criminal Appeal.
86. The defendant has already been exposed to a potential prejudice caused by the delay in the conclusion of these proceedings. It is appropriate therefore that any request to state a case be made expeditiously and preferably within 14 days.
87. The Court makes the following orders:-Orders
2. The proceedings generally are adjourned for mention before me at 9.30 am on 14 May 1999.1. The prosecutor is directed to file and serve any Notice of Motion which it proposes by 4.00 pm on 7 May 1999. The Notice of Motion is to be made returnable on 14 May 1999 at 9.30 am before me.
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