M&S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd

[2023] NSWLEC 65

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

M&S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2023] NSWLEC 65

Hearing dates:

7 February and 7 March 2022

Date of orders:

16 June 2023

Decision date:

16 June 2023

Jurisdiction:

Class 5

Before:

Pepper J

Decision:

See orders at [162].

Catchwords:

ENVIRONMENTAL OFFENCES: private prosecution - defendants charged with multiple offences concerning the transport and deposit of waste material containing asbestos on land – whether summonses should be permanently stayed or struck out on the ground that the charges were commenced out of time – proper construction of phrases “evidence of the alleged offence” that first came to the attention of “any relevant authorised officer” – when evidence of the acts or omissions constituting some of the offences came to the attention of the relevant authorised officer –what constitutes a “continuing offence” – pollution of land offence not a continuing offence in these proceedings – except for summons charging defendant with the unlawful disposal of asbestos waste the summonses must be dismissed by reason of being time barred.

Legislation Cited:

Clean Waters Act 1970, ss 12, 16

Criminal Procedure Act 1986, s 257C

Environmental Offences and Penalties Act 1989, s 12

Environmental Planning and Assessment Act1979, ss 125, 127(5A)

Evidence Act 1995, Dictionary

Local Government Act 1993, s 378

National Parks and Wildlife Act 1974, s 190

Native Vegetation Act 2003, ss 12, 42

Protection of the Environment Operations Act 1997, ss 6, 91, 115, 142A, 143, 144AAA, 169, 169B, 169C, 184, 187, 216, 219, 242, 245, 261

Cases Cited:

Bentley v Gordon; Bentley v BGP Properties Pty Ltd [2005] NSWCCA157; (2005) 139 LGERA 449

Chief Executive, Office of Environment and Heritage v Grant Wesley Turnbull (No 3) [2019] NSWLEC 165

Chief Executive, Office of Environment and Heritage v Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117; (2015) 209 LGERA 280

Chief Executive of the Office of Environment and Heritage v Somerville [2019] NSWLEC 155

Cumberland Council v Younan; Oueik; H and M Renovations Pty Ltd [2018] NSWLEC 145

CSR Ltd v Environment Protection Authority [2000] NSWCCA 373

Environment Protection Authority v Alkem Drums [2000] NSWCCA 416; (2000) 113 LGERA 130

Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79

Environment Protection Authority v CSR Ltd (t/as CSR Woodpanels) (1998) 45 NSWLR 357

Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361

R v Buckland [1977] 2 NSWLR 452

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106; (2014) 201 LGERA 428

Somerville v Chief Executive of the Office of Environment and Heritage [2020] NSWCCA 93; (2020) 246 LGERA 141

Willoughby City Council v Screnci [2015] NSWLEC 192; (2015) 213 LGERA 238

Category:

Principal judgment

Parties:

2021/261150 to 2021/261176
M & S Investments (NSW) Pty Ltd (Prosecutor)
Affordable Demolitions & Excavations Pty Ltd (First Defendant)
Chalita Boutros (Second Defendant)
Angela Carbone (Fourth Defendant)
Domenic Carbone (Fifth Defendant)
Rimon Boutros (Sixth Defendant)

Representation:

Counsel:
R Tripodi (Prosecutor)
S Grey (First, Second and Sixth Defendants)
R Coffey (Fourth Defendant)
R Boncardo (Fifth Defendant)

Solicitors:
Watson Stafford Zipkis Solicitors (Prosecutor)
Boutros & Associates (First, Second and Sixth Defendants)
Macpherson Kelly (Fourth Defendant)
Sparke Helmore (Fifth Defendant)

File Number(s):

2021/261150; 2021/261151; 2021/261152; 2021/261153; 2021/261154; 2021/261155; 2021/261156; 2021/261157; 2021/261163;
2021/261164; 2021/261165; 2021/261166 2021/261167; 2021/261168; 2021/261169; 2021/261170; 2021/261171; 2021/261172;
2021/261173; 2021/261174; 2021/261175; 2021/261176

Publication restriction:

Nil

JUDGMENT

The Defendants Seek a Permanent Stay of Proceedings

1. On 8 September 2021, the prosecutor, M&S Investments (NSW) Pty Ltd (“M&S”), a private party, not a public or regulatory authority, filed a total of 27 summonses (“the summonses”) pursuant to s 219(2) of the Protection of the Environment Operations Act 1997 (“POEOA”) for leave to commence proceedings against a number of defendants.

2. The summonses relate to the transport to, and deposition of, alleged waste material on Lot 25 Jardine Drive in Edmondson Park (“the property”), owned by M&S and Futurepower Developments Pty Ltd (“Futurepower”) as tenants in common, by parties other than M&S, and about which M&S had no knowledge. Futurepower is currently in liquidation.

3. Affordable Demolitions and Excavations Pty Ltd (“Affordable Demolitions”) is the first named defendant in the proceedings. Chalita Boutros is the second defendant and an employee of Affordable Demolitions. Rimon Boutros is the sixth defendant and the sole director of Affordable Demolitions (together, “the Boutros defendants”). Chalita and Rimon Boutros are charged by reason of the application of executive liability for corporate offences provided for in ss 169, 169B(2) and 169C of the POEOA. The Boutros defendants are collectively separately represented from the other defendants in the proceedings.

4. Futurepower is the third defendant in the proceedings. Angela Carbone is the director of Futurepower and the fourth named defendant. She is separately represented. Her husband, Domenic Carbone, the fifth defendant, is also separately represented.

5. Section 219(2) of the POEOA relevantly provides as follows:

219   Other persons may institute proceedings with leave of Land and Environment Court

…

(2)   The Land and Environment Court is not to grant leave unless satisfied that—

(a)   the EPA has decided not to take any relevant action (as defined in subsection (3)) in respect of the act or omission constituting the alleged offence or has not made a decision on whether to take such action within 90 days after the person or authority requested the EPA to institute the proceedings, and

(b)   the EPA has been notified of the proceedings, and

(c)   the proceedings are not an abuse of the process of the Court, and

(d)   the particulars of the offence disclose, without any hearing of the evidence, a prima facie case of the commission of the offence.

(3)   Relevant action for the purposes of subsection (2) is not limited to the institution of criminal proceedings, but includes action under this Act to require the defendant to prevent, control, abate or mitigate any harm to the environment caused by the alleged offence or to prevent the continuance or recurrence of the alleged offence.

6. On 11 September 2021 Moore J granted leave to M&S to commence Class 5 proceedings. In doing so it must be presumed that his Honour was satisfied that the proceedings were not an abuse of process (see s 219(2)(c) of the POEOA).

7. This judgment concerns a series of notices of motion seeking to strike out or permanently stay the summonses on the ground that they are statute barred. Given the number of summonses filed against multiple parties, for the sake of clarity it is convenient to structure this judgment by reference to each group of defendants.

8. There are nevertheless facts common to all of the Class 5 proceedings that were relied upon by the defendants to the notices of motion. These facts were contained in a statement of agreed facts and various affidavits filed by the parties, namely:

1. the affidavit of Malke Boutros, the solicitor for the Boutros defendants, affirmed 14 January 2022;

2. two affidavits of Catherine Morton, the solicitor for Domenic Carbone, both sworn on 14 January 2022;

3. the affidavits of Emma Fleming, the solicitor for Angela Carbone, sworn on 14 January and 4 February 2022, together with exhibits; and

4. an affidavit of Marko Bilaver dated 26 March 2021, a director of M&S.

9. In response, M&S relied upon an affidavit of Peter Zipkis, its solicitor, dated 7 September 2021.

10. None of the deponents were required for cross-examination.

11. The evidence in one matter was evidence in all matters for the purpose of the notices of motion and it should be noted that, in addition to making separate submissions, each defendant adopted the arguments of the other defendants.

12. Finally, it should be observed that there was no appeal against Moore J’s decision to grant leave. It was for this reason that none of the defendants pursued an alternative ground contained in the notices of motion for dismissal of the summonses, namely, abuse of process.

The Central Issue for Determination

13. The central issue for determination in all of the notices of motion is whether the proceedings were commenced out of time.

14. In the summonses M&S pleads that evidence of the alleged offences first came to the attention of a relevant authorised officer, Cameron Theys, an Assistant Environmental Health Officer with Liverpool City Council (the “Council”), on 12 September 2018, for the purposes of s 216(2)(a) and (3) of the POEOA. It does so in reliance upon a letter dated 16 July 2021 from Marsdens Law Group on behalf of the Council.

15. In his affidavit Bilaver stated that he “could not recall the exact date” of the dumping of the stockpile of waste on the property “without assistance from Investigating officers of Liverpool Council”. He thought it was sometime in September, October or November 2016. He deposes witnessing the dumping of the material on the property at that time.

16. Bilaver and Senka Bilaver, are, and at all material times have been, the directors of M&S.

17. If 12 September 2018 is the correct date, then the summonses – all filed on 8 September 2021- are within time.

18. By contrast, the defendants rely upon earlier correspondence from the Council to submit that a relevant authorised officer of the Council was aware of the unlawful stockpile of waste material on the property as early as 2016, and that therefore, the proceedings are statute barred pursuant to s 216 of the POEOA.

19. It follows that if the defendants are correct, the proceedings were commenced out of time and must be dismissed (Willoughby City Council v Screnci [2015] NSWLEC 192; (2015) 213 LGERA 238 at [54).

Waste Material is Emplaced Upon the Property

20. The property is the subject of a development consent applied for and granted by the Council in 2012. Modifications to the consent were approved by the Council in December 2013 and again in 2014.

21. On 15 April 2015 Guy Vo, a Senior Land Development Engineer at the Council, provided a final inspection certificate in respect of the property.

22. On 12 September 2016 the Chief Executive Officer of the Council delegated certain powers, functions, responsibilities and duties to the persons occupying the position of Senior Land Development Engineer pursuant to s 378 of the Local Government Act 1993. These powers, functions, responsibilities and duties included the power of entry for the purposes of inspection, investigation, sampling and seizure under the POEOA. In terms of administrative functions, these included to “exercise and perform the powers, authorities, duties and functions of an authorised officer or authorised person or council investigation officer…in respect of all matters arising from the administration of” the POEOA.

23. A report by Australian Safer Environment & Technology Pty Ltd dated 15 September 2015 in respect of five samples of the fill, found that the fill material was asbestos free.

24. The same day, Pacific Environmental Australia Pty Ltd sent an asbestos clearance inspection report stating that the inspection and sampling undertaken “post the removal of contaminated soils and an additional 100mm below the former western stockpile” indicated that all asbestos soils removed from the site had been transported to an appropriate licensed landfill site.

25. The nature of the remaining fill was communicated to Vo on 19 October 2016, by Shane Harding, a Project Manager at North Western Surveys Pty Ltd. The communication concerned the topsoil remaining at the “Domenic Carbone subdivision” that was to be removed by a contractor. The email noted that the final clearance for the topsoil was “confirmed as asbestos (and contamination) free”.

26. On 25 July 2017 Stephen Monte, a Senior Land Developer Engineer at the Council, sent an email to surveyors Lean, Lackenby & Haywood, copying in Vo. The email related to an application for a construction certificate (“CC”) in respect of the property and stated, amongst other things, that:

… Council will not be able to assess this application until all illegal fill material has been removed [sic in original] the site.

The fill has now entered the creed and there is no evidence of any sediment controls on the site.

I [sic in original] addition as the origin of the fill material is unknown it is assumed to be contaminated and the site must be validated once the material is removed.

27. Monte’s email attached a photograph of “illegal works” said to have been carried out on the property. The email concluded by stating that “I will refer this activity to our enforcement department for further action.”

28. Domenic Carbone replied to this email the same day, detailing how the fill had been moved to the property and stating that discussions had occurred with Vo in October and November 2016, during which Vo approved the placement of the soil on the property. This asserted approval was, however, denied in subsequent correspondence by Vo. Domenic Carbone acknowledged in the email that “there has been soil illegally dumped on site by unknow persons and/or contractors”.

29. In response to the email from Domenic Carbone, Monte noted that Vo had been falsely told that a CC application had been approved and that works had begun at the property with the result that “no approval has been given for this fill”. The reply agreed that Vo had been on the property when the fill was being moved in 2015. It was reiterated that the fill material should have already been, and would need to be, removed in accordance with “Geotech and Council specs”.

30. On 3 August 2017 Monte further emailed Domenic Carbone, noting that the assessment of the CC could not progress until the fill material was removed from the property.

Events Leading Up to the Issuing of Clean Up Notices

31. On 14 August 2018 the Natural Resources Access Regulator (“NRAR”) received a report that there was debris on the property which was draining into Cabramatta Creek.

32. Marie Schildt of the NRAR wrote to the Council on 4 September 2018, attaching a report regarding the “disposal of waste (debris) on Lot 91 DP 843 at 498 Jardine Drive, Edmondson Park - alleged breach of the POEOA. Please investigate and take action” (“the Schildt report”).

33. On 5 September 2018 the Council responded to Schildt querying the address of the property.

34. Schildt replied on 11 September 2018, giving the correct address of the property.

35. That same day a complaint was received by the Council concerning the fill material on the property.

36. Theys attended the property on 12 September 2018 and observed a large stockpile of accumulated soil and waste.

37. On 25 September 2018 Theys wrote separately to both Futurepower and M&S detailing the property inspection on 12 September 2018, and noting that he had observed a large stockpile of soil and waste.

38. On 23 October 2018 the Council served a letter explaining that it reasonably suspected that a land pollution incident had occurred due to the deposit of the fill material on the property.

39. On 9 November 2018 the Council served a draft clean-up notice pursuant to s 91 of the POEOA on each of M&S (in its capacity as a joint owner of the property) and Futurepower.

40. On 20 November 2018 Domenic Carbone, in his capacity as the Principal Solicitor for Barclays Law Group, sent a letter and supporting documents to the Council, advising that Barclays acted for both Futurepower and M&S, confirming that the stockpiled soil, which had recently been placed on the property, had been removed, and stating that what remained on the property was for the stage 3 works of the approved development. The letter also indicated that the materials were not contaminated and did not pose any pollution or other risk, and moreover, that the soils had been on the property since September 2016 and had been moved to the property with the Council’s knowledge. He noted that there had been a previous email exchange with the Council in 2017 which supported his contention that the Council was aware that the soils were placed there for the stage 3 works and that they were not contaminated. He relied upon soil analysis dated 17 and 21 August and 15 September 2015, demonstrating that the fill was not contaminated. The letter challenged the lawfulness of any clean-up notice which might be issued by the Council.

41. Monte emailed Theys on 28 November 2018 to confirm that no CC had been issued for the site and that the fill imported to the site had, contrary to the assertion by Domenic Carbone, not been approved and, in addition, that the Council would not consider the CC application until all of the fill was removed.

42. Between 2 and 3 January 2019 there was an internal email exchange between various employees at the Council (including Vo, Monte and Theys) concerning the development and the fill. The email referred back to clearance documentation for the current soil dated 15 September 2015, which referenced asbestos.

Restore Work Order

43. On 26 April 2019 the Council issued a notice of proposed Restore Works Order to Bilaver (as a director of M&S) detailing that it had inspected the property on 31 January 2019, and that the inspection had revealed that the property was being used to store stockpiles of landfill in circumstances where no development consent had been obtained to do so. A draft Restore Works Order was attached to the notice.

44. That same day, the Council issued Angela Carbone, in her capacity as a director of Futurepower, with a relevantly identical covering letter and draft order.

45. On 10 May 2019 Domenic Carbone, acting as the solicitor for Futurepower, wrote to the Council in respect of the letter and the draft order issued to Futurepower.

46. In reply, Vo again questioned whether there was an approved CC in place.

47. On 18 May 2019 Peter Zipkis, a solicitor from Watson Stafford Zipkis, wrote to the Council on behalf of M&S in response to the Council’s letter and the draft notice of 26 April 2019. Zipkis’s correspondence stated that the stockpile was deposited some years ago without his client’s knowledge or consent; that the Council had previously threatened to issue notices in regard to the stockpile, directing the Council to the Barclay’s letter dated 20 November 2018; that the soil was moved onto the property for temporary purposes and with the Council’s knowledge and that the matters otherwise set out in Domenic Carbone’s 20 November 2018 correspondence remained applicable; that M&S was attempting to divest itself of all future involvement in the property; that a notice should not be issued because this would “further complicate negotiations”; that the soil had been present for several years and, from the contents of the letter from the Barclays Law Group, would appear to pose no environmental or other risk; and that the soil was intended to be used as part of the earthworks and it would therefore be inappropriate for a notice to be issued.

48. On 18 June 2019 the Council issued Futurepower and M&S with separate Restore Works Orders requiring them to remove the stockpiles of landfill on the property, restore the land to its original ground level, and submit a survey plan from a suitably qualified surveyor confirming that this had occurred.

49. On 5 August 2019 the Council issued Futurepower and M&S with final warnings in relation to their non-compliance with the Restore Works Order.

43. M&S commissioned Aargus Pty Ltd (“Aargus”) to conduct a preliminary waste classification of the soil material in the stockpile on the property. On 30 August 2019 Aargus issued its report (“the Aargus report”) which stated that of the five samples taken, one returned a positive result for asbestos. As a consequence, the stockpiled material was classified as Special General Solid Waste (Asbestos).

44. On 21 October 2019 Bilaver reported to the Environmental Protection Agency (“EPA”) that Domenic Carbone had moved soil contaminated with asbestos onto the property sometime in 2016; that he had approached the people moving the soil onto the property and forbade them from doing so, however, soil was moved onto the property; that he estimated that the soil involved 150-200 truckloads of material; that Aargus had tested the soil and it contained asbestos waste; and that the Council had sent many letters over the last two years requesting that the soil be removed, but that this had not occurred.

45. On 26 March 2021 Zipkis, on behalf of M&S, wrote to the General Manager of the Council in relation to the soil on the property. The letter requested that the Council investigate and use its powers to gather evidence of the commission of offences. The letter also requested that the Council provide M&S with written advice identifying the authorised officer who had first obtained evidence of the offences for the purposes of s 216(2)(a) of the POEOA.

46. By letter dated 16 July 2021, Marsdens Law Group, representing the Council, replied to Zipkis’s letter relevantly stating that:

Identity of the authorised officer who first obtained evidence and the date that evidence was first obtained.

Council’s records seem to confirm that the authorised officer who first carried out an inspection of the land was Mr Cameron Theys. Mr Theys is no longer employed by Council. Councils records seem to confirm that the first inspection of the land took place on 12 September 2018.

Time Limits Under the POEOA

54. Section 216 of the POEOA provides for the following time limits within which proceedings must be commenced:

216   Time within which summary proceedings may be commenced

(1)   Proceedings for an offence under this Act or the regulations may be commenced—

(a)   in the case of a prescribed offence—within but not later than 3 years after the date on which the offence is alleged to have been committed, or

(b)   in any other case—within but not later than 12 months after that date.

(2)   Proceedings for an offence under this Act or the regulations may also be commenced—

(a)   in the case of a prescribed offence—within but not later than 3 years after the date on which evidence of the alleged offence first came to the attention of any relevant authorised officer, or

(b)   in any other case—within but not later than 12 months after that date.

(3)   If subsection (2) is relied on for the purpose of commencing proceedings for an offence, the court attendance notice or application must contain particulars of the date on which evidence of the offence first came to the attention of any relevant authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of any relevant authorised officer is the date specified in the court attendance notice or application, unless the contrary is established.

(4)   This section applies only to proceedings that are to be dealt with summarily.

(5)   This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.

(6) In this section—

authorised officer means any person who is an authorised officer for the purposes of this Act, whether or not the person has the functions of an authorised officer in connection with the offence concerned.

evidence of an offence means evidence of any act or omission constituting the offence.

prescribed offence means—

(a)   an offence arising under Part 5.2, or

(b)   an offence arising under Part 3.2, or

(c) an offence arising under section 143 (Unlawful transporting of waste) or 144 (Use of place as waste facility without lawful authority), or

(ca) an offence under section 144AAA (Unlawful disposal of asbestos waste) or 144AAB (Re-use and recycling of asbestos waste prohibited), or

(c1) an offence under section 142A (Pollution of land) or 144AA (False or misleading information about waste), or

(c1a)   an offence under section 167A (False or misleading information), or

(c2)   an offence arising under the Environmentally Hazardous Chemicals Act 1985 to which this Chapter extends by virtue of section 213, or

(c3)   an offence under section 120 (Prohibition of pollution of waters) but only in relation to underground or artesian water, or

(c4)   an offence under section 144AB (Repeat waste offenders), or

(c5)   an offence arising under section 169A (Liability of directors etc for offences by corporation—offences attracting executive liability generally) that is in respect of an offence against section 47 (1), 48 (2) or 144AA (1) committed by a corporation, or

(c6)   an offence arising under section 169B (Liability of directors etc for offences by corporation—accessory to the commission of the offences) that is in respect of an offence referred to in paragraphs (a)–(c3) committed by a corporation, or

(d)   an offence against this Act that is declared by the regulations to be a prescribed offence for the purposes of this section.

relevant authorised officer means—

(a)   in relation to proceedings for an offence instituted by or with the consent of the EPA or a member of the staff of the EPA—any authorised officer who is a member of the staff of the EPA, or

(b)   in relation to proceedings for an offence instituted by or with the consent of a local authority or an officer or employee of such an authority—any authorised officer who is an officer or employee of that authority, or

(c)   in relation to proceedings for an offence instituted by any other person—any authorised officer.

55. Section 187 of the POEOA concerns the appointment of authorised officers:

187   Appointment of authorised officers

(1)   The EPA may appoint any person (including a class of persons) as an authorised officer for the purposes of this Act.

(2)   Any other regulatory authority may appoint any officer or employee of the authority (including a class of such officers or employees) as an authorised officer for the purposes of this Act.

(2A)   In addition, a regulatory authority that is a local council may appoint any officer or employee of another local council (including a class of such officers or employees) as an authorised officer for the purposes of this Act in respect of the appointing local council’s area.

(3) In this section—

employee of an authority includes a person whose services are used by the authority and who is, in respect of those services, subject to the direction and control of the authority.

56. Ordinarily M&S would bear the onus of demonstrating beyond reasonable doubt that the proceedings were brought within time. However, because of the wording of s 216(3) of the POEOA, this burden is transferred to the defendants to establish, albeit on the balance of probabilities, that the proceedings were commenced out of time (Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106; (2014) 201 LGERA 428 at [84], Cumberland Council v Younan; Oueik; H and M Renovations Pty Ltd [2018] NSWLEC 145 at [57] and Chief Executive of the Office of Environment and Heritage v Somerville [2019] NSWLEC 155 at [44]).

The Boutros Defendants

57. The summonses in proceedings 261150 to 26157 and 261173 to 261176 of 2021 charge the Boutros defendants with the offences under the POEOA of unlawfully transporting and depositing waste (s 143), unlawfully disposing of waste (s 115), including asbestos waste (s 144AAA), and polluting land (s 142A). In addition to conviction, M&S seeks compensation and restoration orders. The summonses pleaded that “the offences occurred on a day or days in the period 1 September 2016 to 17 November 2016”.

58. As stated above, the amended notices of motion filed on 7 February 2022 by the Boutros defendants seek orders that the proceedings against them be struck out or permanently stayed on the basis that they are statute barred pursuant to s 216(2)(a) of the POEOA, insofar as the Boutros defendants submit that the evidence of the alleged offences first came to the attention of a relevant authorised officer more than three years prior to the commencement of the proceedings on 8 September 2021.

59. All of the offences with which the Boutros defendants are charged are “prescribed offences” for the purpose of s 216(2) of the POEOA under s 216(6) of that Act:

1. s 115 (disposal of waste) is a Pt 5.2 offence (s 216(6)(a));

2. s 142A (pollution of land) (s 216(6)(c1));

3. s 143 (unlawful transporting or depositing of waste) (s 216(6)(c)); and

4. s 144AAA (unlawful disposal of asbestos waste) (s 216(6)(ca)).

60. As alluded to above, M&S relied upon s 216(2)(a) of the POEOA to assert that the proceedings have been brought within time.

61. The Boutros defendants’ notices of motion therefore give rise to two principal issues for determination:

1. first, who is a “relevant authorised officer” for the purpose of s 216(2)(a) of the POEOA; and

2. what constitutes “evidence of the alleged offence” for the purpose of that provision?

“Relevant Authorised Officer”

62. There was no dispute that the Council is the relevant regulatory authority and that it appointed persons to be authorised officers for the purpose of s 216(2) of the POEOA under s 187(2) of the Act.

63. M&S submitted that Theys was the “relevant authorised officer” for the purpose of s 216(2) of the Act relying upon the 16 July 2021 Marsdens Law Group letter.

64. However, that letter merely states that Theys was the authorised officer who first carried out an inspection of the property on the date stipulated therein. It does not state that he was the only authorised officer who dealt with the property and the fill deposited upon it.

65. The definition of “authorised officer” in s 216(6) of the POEOA, when read together with s 187(2) and the definition of “employee” in s 187(3) of that Act, makes it clear that any employee of the Council who had dealings with the property can be a “relevant authorised officer” for the purpose of s 216(2) of the Act.

66. Importantly, the words “any relevant authorised officer” are used in s 216(2) of the POEOA (emphasis added). The use of the pronoun “any” strongly suggests that the relevant authorised officer need not be a person specifically assigned or designated to investigate the alleged offence. Rather, it speaks to any person who is a relevant authorised officer as that term is defined. This construction is consonant with the purpose of the provision which is to encourage prosecuting authorities to bring proceedings for a breach of a prescribed offence under the POEOA “as quickly as possible and create certainty in that regard” (Younan at [82]).

67. M&S submitted that neither Vo nor Monte were “relevant authorised officers” for the purpose of s 216(2) of the POEOA, whereas Theys was, having regard to s 261 of that Act and the definition of “authorised officer” contained in the Dictionary.

68. Section 261of the POEOA relevantly provides as follows:

261   Certificate evidence of certain matters

(1)   A document signed by the CEO or a designated officer and certifying any one or more of the matters specified in subsection (2) is admissible in any proceedings under this Act and is prima facie evidence of the matters so certified…

(2)   The matters referred to in subsection (1) are as follows—

…

(g)   that a person was or was not, at a specified time or during a specified period, an authorised officer or enforcement officer,

…

(3)   For the purposes of a certificate referred to in subsection (2)(g) in respect of an authorised officer or enforcement officer, a designated officer who may give the certificate includes the appropriate regulatory authority that appointed the authorised officer or enforcement officer or an officer of that authority who is appointed by that authority for the purposes of this subsection.

69. As defined in the Dictionary to the POEOA, an “authorised officer” means “a person appointed under Pt 7.2 by an appropriate regulatory authority”. According to M&S, only Theys was appointed under Pt 7.2, whereas Vo and Monte were not, and therefore, only Theys was a “relevant authorised officer” for the purpose of s 216(2) of the Act.

70. This might be a compelling argument but for the definition of “authorised officer” contained in s 216(6) of the POEOA which clearly sets out who is an authorised officer for the purpose of that section. It is this definition that is the relevant definition for the purpose of s 216 (“in this section”) and not that provided for in the Dictionary. Were it otherwise, the definition of “authorised officer” contained in s 216(6) would have no work do to. It is the definition of “authorised officer” in s 216(6) that prevails in the present case.

71. As noted above, the meaning ascribed to the term “authorised officer” in s 216(6) is broad and includes “any person” who is an “authorised officer” whether or not that person was appointed as such with respect to the offence the subject of the extended limitation period afforded by s 216(2) of the POEOA. This conclusion is reinforced by, and in conformity with, the language of s 216(2), namely, “any relevant authorised officer”.

72. It is only in relation to the meaning of the words “authorised officer” in s 216(6) of the POEOA that the definition of that term in the Dictionary becomes relevant. That is, if evidence of the alleged offence first came to the attention of any person appointed under Pt 7.2 by an appropriate regulatory authority (of which the Council is such a body: see s 6 of the POEOA), this will be sufficient. It does not have to be a person appointed under Pt 7.2 to investigate the commission of a specific offence or even the offence the subject of the time limitation contained in s 216(2) of the Act. Any person appropriately appointed will suffice.

73. There is no doubt that Theys is a “relevant authorised officer” for the purpose of s 216(2) of the POEOA. However, as the Fleming evidence demonstrates, so too were Vo and Monte. Both were Senior Land Development Engineers with the Council with, pursuant to an instrument of delegation, powers of entry, including for the “purpose of inspection, investigation, sampling, seizure and any other functions”. Under that instrument they were expressly tasked to “exercise and perform the powers, authorities, duty and functions of an authorised officer…in respect of all matters arising from the administration of”, among other enactments, the POEOA.

74. M&S advanced an argument for the first time in oral submissions that Vo and Monte were required to be appointed as authorised officers specifically under Pt 7.2 of the POEOA (see s 187) and because the instrument of delegation only referred to s 378 of the Local Government Act, neither engineer was a “relevant authorised officer” for the purpose of s 216(2) of the POEOA.

75. There are several responses to this contention. First, the reference to s 378 of the Local Government Act in the instrument of delegation does no more than set out the power of the Chief Executive Officer of the Council to delegate certain functions to the person occupying the identified role. It is important to note in this context that there is no challenge to the appointment by the Council of Monte and Vo as authorised officers under s 187(2) of the POEOA in their roles as Senior Land Development Engineers.

76. Second, as the language in s 216(6) of the POEOA makes plain, it is not necessary for an “authorised officer” to have the “functions of an authorised officer in connection with the offence concerned”. To reiterate, any person who is an authorised officer can be a relevant authorised officer for the purpose of s 216(2) of the POEOA. The person does not have to be appointed under Pt 7.2 of the Act as a compliance and enforcement officer as submitted by M&S. Were it otherwise, the phrase “whether or not the person has the functions of an authorised officer in connection with the offence concerned” in the definition of “authorised officer” contained in s 216(6) of the Act would be rendered otiose.

77. Third, and in any event, although Pt 7.2 of the POEOA was not expressly referenced in the delegation, that Act was and the description of the administrative remit of a Senior Land Development Engineer contained in G6 and R11 is, in my opinion, sufficiently broad to encompass the enforcement and compliance powers contained in Pts 7.1 and 7.2 of the Act.

78. M&S further argued that Vo and Monte were not “authorised officers” for present purposes because the powers they were exercising at the relevant time were not being exercised for the purposes set out in s 184(a) of the POEOA.

79. Section 184 of the POEOA states as follows:

184   Purposes for which powers under Chapter may be exercised

Powers may be exercised under this Chapter for the following purposes—

(a)   for determining whether there has been compliance with or a contravention of this Act or the regulations or any environment protection licence, notice or requirement issued or made under this Act,

(b)   for obtaining information or records for purposes connected with the administration of this Act,

(c)   generally for administering this Act and protecting the environment.

80. According to M&S, the functions and powers being exercised by Vo and Monte pursuant to the instrument of delegation were only in respect of s 184(b) and (c), and therefore, they were not “authorised officers”.

81. However, in my opinion, the instrument of delegation is sufficiently broad in its scope that it encompasses the purposes of compliance or contravention (s 184(a)). Not only were Vo and Monte delegated with a power of entry for “purpose of inspection and investigation, sampling, seizure and any other functions as authorised under the provisions of the” POEOA (G6) (emphasis added), they were empowered to exercise and perform the powers, authorities, duties and functions of an authorised officer…in respect of all matters arising from the administration of” the POEOA (emphasis added). This clearly included duties and functions associated with compliance and contravention.

82. There was nothing in the extrinsic material to the POEOA put before the Court by M&S, or by analogy with s 12 of the Environmental Offences and Penalties Act 1989, that alters the conclusions above.

83. M&S submitted that the failure of the defendants to call Monte and Vo as witnesses to explain the scope of their duties under the delegation gave rise to an adverse inference applying the rule in Jones v Dunkel ([1959] HCA 8; (1959) 101 CLR 298 at 312 and 321). That rule permits an inference that evidence not called by a party would not have assisted it (Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at [64]).

84. Notwithstanding M&S’s erroneous submission that the Court was dealing with a “civil action” (T93.35) (see the definition of “criminal proceeding” in the Dictionary to the Evidence Act 1995), the principle in Jones v Dunkel can, albeit with a degree of caution and not to the accused, apply to criminal proceedings (R v Buckland [1977] 2 NSWLR 452 and RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at [26]-[29]). In the present case, there is no inference to be drawn because the instrument of delegation speaks for itself and the evidence of neither Monte nor Vo can assist the Court in its interpretation.

85. And, as may be observed, although the onus is on the defendants to demonstrate that the proceedings are statute barred, there was nothing preventing M&S from calling Theys, Monte or Vo, particularly having regard to its prosecutorial obligations (RPS at [29]).

86. Finally, I do not understand how s 261 of the POEOA assists M&S. On the contrary, to the extent that the section has any application (the provision largely relates to the evidentiary character of certification of the mattes listed therein), it appears to validate the conclusions above insofar as there exists a document signed by the Acting Chief Executive Officer of the Council delegating persons occupying the position of Senior Land Development Engineers with duties, powers and functions under the POEOA.

80. Consequently, for the reasons above, I find that both Vo and Monte were “relevant authorised officers” for the purpose of s 216(2) of the POEOA.

“Evidence of the Offence”

88. Unhelpfully there is a difference in wording between s 216(2)(a) in the POEOA and the definition given to the composite term “evidence of an offence” in s 216(6) of that Act. Sub-section 2(a) is drafted in terms of “the offence” whereas subsection (6) refers to evidence of both “an offence” and “the offence”.

89. However, upon further analysis the distinction is not, in my view, material and the two provisions can be read harmoniously. Commencing with the text of s 216(2) of the POEOA, read in the context of the definition provided for in s 216(6) of the Act, the time limit provided for in the former section becomes not later than three years after the day on which evidence of any act or omission constituting the offence first came to the attention of “any relevant authorised officer”. It is not sufficient, in my opinion, that evidence of any act or omission constituting an offence comes to the relevant authorised officer’s attention, rather it must be, in conformity with the text of s 216(2), evidence of any act or omission constituting the offence with which the defendant has been charged. To hold otherwise would be contrary to the express and unambiguous language of s 216(2) of the POEOA.

90. The phrase “evidence of the offence” in s 216(2) of the POEOA has received scant judicial attention, however, a number of decisions have examined the construction of the term in relevantly similar statutory wording to that contained in s 216(2) of the POEOA.

91. In Rummery, the Court of Appeal considered s 42 of the Native Vegetation Act 2003 (now repealed) (“NVA”) which relevantly provided:

42   Proceedings for offences

…

(3)   Proceedings for an offence under this Act or the regulations may be commenced within, but not later than, 2 years after the date on which the offence is alleged to have been committed.

(4)   However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of an authorised officer. …

92. The Court of Appeal concluded that (at [104] to [107]):

104   Insofar as ground 5 of the grounds of appeal is put forward as a basis for setting aside the conviction because of an argument that "at least part of the charge may be statute barred", the material sought to be relied upon by Mr Rummery does not establish that the date specified in the summons (as to when evidence of the clearing first came to the attention of an authorised officer) was incorrect. That is an issue on which Mr Rummery bears the onus.

105   What is put forward by Mr Rummery is largely speculation, namely his belief that authorised officers in the OEH were able to have access to the electronic data in a usable form without the need for the rectification process described briefly by Mr Beaman and elaborated upon by Mr Fox and must have had access to that information in order to justify the cost of a charter flight over his property.

106   There is a logical explanation provided by Mr Roberts and Mr Beaman in their respective affidavits as to the course of events. That evidence does not support a conclusion that evidence of the unlawful clearing that was the subject of the charge (i.e., the clearing after 13 August 2008) had come to their attention before they were able to view (from the air) the state of the property on 12 November 2009 and compare that to the hard copy satellite image of what was there on 13 August 2008. (Mere possession of the hard copy satellite image that was taken up with them onto the flight would not have been sufficient to cause them to be aware of post 13 August 2008 clearing.)

107   Simply having the ability to access electronic data by way of a computer program (as Mr Rummery contends would have been open to the OEH officers on the basis that it is something to which he himself is readily able to have access through a particular government website) is not sufficient. What would need to be shown is that in some way evidence of unlawful clearing had actually come to an authorised officer's attention. That could only be done by someone accessing or viewing data from which the possibility of such clearing became apparent. If that were not the case, then the evident purpose of sub-s (5) (namely, to provide a time frame in which proceedings can be commenced where the actual date of clearing is not known) would be frustrated simply by the availability of access to search engines or tools such as those to which Mr Rummery referred in his submissions.

93. Accordingly, it was held in that case that the defendant had not established on the balance of probabilities that the date specified in the summons as to when evidence of illegal clearing first came to the attention of the authorised officer was the correct date.

94. Robson J considered a preliminary limitation question in the context of Class 5 proceedings in Younan, where the defendants were charged with an offence of carrying out development without a CC under s 125(1) of the Environmental Planning and Assessment Act 1979 (“EPAA”). At issue was the proper construction of s 127(5A) of that Act (set out at [54]):

54   At the time of the alleged offences and until it was transposed to s 9.57 on 1 March 2018, s 127 of the EPA Act relevantly provided:

127   Proceedings for offences

…

(5)   Proceedings for an offence against this Act or the regulations may be commenced not later than 2 years after the offence was alleged to be committed.

(5A)   However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of an authorised officer within the meaning of Division 2C of Part 6.

(5B)   If subsection (5A) is relied on for the purpose of commencing proceedings for an offence, the information or application must contain particulars of the date on which evidence of the offence first came to the attention of an authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of an authorised officer is the date specified in the information or application, unless the contrary is established.

(5C) This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.

95. In construing the words “evidence of the alleged offence”, his Honour held that (at [71] to [79], especially at [78]):

71 In resolving the meaning of s 127(5A), the ordinary approach to statutory interpretation applies. The now well-accepted approach was recently considered in Hunter Quarries Pty Ltd v Alexandra Mexon as Administrator for the Estate of the Late Ryan Messenger [2018] NSWCA 178, where Payne JA, with whom Basten and Gleeson JJA, Sackville AJA, and Simpson AJA agreed, said at [57]:

The relevant principles of statutory construction were not controversial. The parties referred to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47], where the plurality emphasised that construction must begin with a consideration of the text itself and while the language employed is the surest guide, its meaning may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. The importance of context, including the general purpose and policy of the provision has subsequently been emphasised by the High Court: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [41]; Federal Commissioner of Taxation v Consolidated Media Holding Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 at [14] and [25]-[39].

72   However, the importance of context does not detract from the centrality of the text and the principle that each word should be given work to do: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (‘Project Blue Sky’) at 381-382. Where the clear words of a statute demand a particular outcome, the fact that the outcome may appear inconvenient will not, in itself, be determinative.

73 In the present case, s 127(5A) provides an exception to the usual rule contained in s 127(5) that proceedings must be commenced within two years of the alleged offence. The exception depends upon evidence of the alleged offence coming to the attention of an authorised officer. In the present circumstances, the relevant inquiry for the Court is directed towards what is meant by “evidence of the alleged offence”.

74 I do not accept the submission of the prosecutor, noted at [58] above, that the word “the” imports consideration of the alleged offender. The provision speaks in terms of the alleged offence because it is referring to the specific offence in respect of which the ordinary rule that proceedings must be commenced within two years has been relaxed.

75   The fact that the charge must be brought against a specific person is clearly the case with all criminal offences but does not mean that evidence of the identity of the offender is part of the evidence of the alleged offence which must come to the attention of the prosecutor.

76 For that reason, contrary to the prosecutor’s submission noted at [60] above, I do not find the fact that s 125(1) includes reference to “a person” of great assistance. Any offence under the EPA Act is necessarily committed by a person (including any corporate “person”). As the defendants submit, s 81A does not refer to the particular person who contravened the Act as being relevant to the particular contravention. In those circumstances, s 125(1) merely recognises that for any breach of the EPA Act in respect of which charges are brought, a person must be responsible.

77   The ordinary meaning of the word “offence” in the present context is a crime. In law, it imports the notion of elements which must be made out beyond a reasonable doubt in order for an accused person to be found guilty. In neither sense does it import the notion of the particular offender, although obviously any criminal proceeding depends upon an identified defendant in respect of whom the elements making up the alleged offence are sought to be made out.

78 I find that “evidence of the alleged offence” on its face means evidence capable of indicating that an offence has been committed. In this circumstance, it would be insufficient merely to have evidence that construction works had commenced. An investigation officer would also need to have evidence brought to his or her attention capable of showing that a construction certificate had not been obtained. However once evidence of both of these elements is brought to his or her attention, and assuming the time limit provided s 127(5) has expired, the time limit provided by s 127(5A) is engaged. As I have explained, and in light of the prosecutor’s concession, this threshold has been satisfied in the present case.

79   Although not determinative given my finding that this is the effect of the ordinary language, I am comforted in this construction by the fact that this appears a sensible operation of the section in the context of the statute.

96. A similar interpretative task fell to the Court at first instance in Somerville with respect to s 190(1)(b) of the National Parks and Wildlife Act 1974 (“NPWA”):

190   Time within which proceedings may be commenced

(1)   Proceedings for an offence under this Act or the regulations may be commenced—

…

(b)   within but not later than 2 years after the date on which evidence of the alleged offence first came to the attention of any authorised officer.

97. The controversy in Somerville concerned whether it was sufficient that the evidence referred to in s 190(1)(b) was evidence of any act or omission constituting an alleged offence under the NPWA with which the defendant was charged, or whether evidence was required of any act or omission constituting the precise offence as particularised in the summons. The Court adopted the latter proposition contrary to the submissions of the defendant, albeit in a qualified manner (at [65] to [70]):

65 In my opinion, the submissions of Mr Somerville ought not be accepted. Significantly, it should be noted that in drafting ss 190(1)(b), 190(2), and again in s 190(4) of the NPWA, the deliberate use of the indefinite article “the” when referring to “the offence” and not “an” is a strong textual indicator that a nexus or connection between the acts or omissions and the offence as charged is required. In other words, acts or omission of any offence charged under the NPWA will not suffice for the purpose of s190(1)(b).

66 While this begs the question as to the strength of the necessary connection between the act or omission relied upon as evidence of the offence and the offence as charged, at a minimum the acts or omission must be acts or omissions referrable to the elements of the offence the subject of the summons. Section 190(4) makes it plain that the “evidence of an offence means” (and not “includes”) evidence by way of an act or omission of “the” possession offences and “the” harm offences, and not mere potential offending in general under the NPWA.

67   The use of the qualifier “any act or omission” is similarly a deliberate choice by Parliament. As Mr Somerville correctly submitted, it expands the range of acts or omissions evidence of which will enliven the time within which proceedings must be commenced under s 190(1)(b). But the word “any” must be read in the context of s 190(4) as a whole, which includes the words “constituting the offence”. It is not at large; it is tethered to the offence as charged.

68 It is unlikely that to be “evidence” for the purpose of s 190(4) of the NPWA, the acts or omissions must mirror exactly the particulars contained in the summons of, for example, the specific threatened species or protected fauna harmed or possessed. Nevertheless, the acts or omissions must form a part of the possession and harm offences under ss 101, 118B, and 118A of the NPWA. They must constitute, at least in part, an element of those offences. Visiting, foraging, and leaving markings in conservation areas is not an element of any of the offences charged.

69 In this regard, evidence of Mr Wade’s subjective belief or suspicion that any one of the numerous offences under the NPWA that he identified in the application for a search warrant had been committed by Mr Somerville is not determinative. This amounted to no more than evidence of potential offending in general under that Act and not evidence of “the offence” as charged in the summonses.

70   Furthermore, there is, as OEH correctly submitted, “a great distance between evidence that the accused might be committing and offence and evidence of an act constituting [a particular] offence”. The circumstantial evidence that first came to Mr Wade’s attention prior to 6 November 2016 rose no higher than evidence that Mr Somerville might be committing, or preparing to commit, an offence. There was nothing unlawful of itself about Mr Somerville being present in the Beni or Goonoo SCAs; being seen on public or private lands; looking into bushes or shrubs or climbing trees; or even being in a caravan on a hot day. Until the search warrant was executed there was nothing linking the coloured tape to Mr Somerville. And Mr Somerville was not observed using the tomahawk or ladder, nor was he seen removing, disturbing, collecting, possessing, or harming any animal, protected fauna, or part thereof. In my view, none of these acts were sufficient to be “any act or omission constituting” the offences contained in ss 101(1), 118A(1), or 118B(1) of the NPWA. At best, these acts amounted to evidence that Mr Somerville was looking or foraging for eggs to collect at some point in the future. But these acts did not constitute an offence under the NPWA, let alone the offences with which he was charged. Accordingly, as at 6 November 2016, there was no evidence of “any acts constituting the” possession and harm offences that had first come to the attention of an authorised officer.

98. On appeal (Somerville v Chief Executive of the Office of Environment and Heritage [2020] NSWCCA 93; (2020) 246 LGERA 141), the Court of Criminal Appeal emphasised that mere suspicion and belief on the part of an authorised officer was insufficient for time to commence to run under s 190(1)(b) of the NPWA (at [61]). Therefore, it did not follow from the fact that the authorised officer had reasonable grounds to believe that the offences had been committed that evidence of the offences had come to his attention for the purpose of s 190(1)(b) of that Act. As that Court observed (at [68] and [72]):

68 Section 190(1)(b) must be judged by reference to the contemporaneous knowledge of the prosecutor and not by hindsight. Evidence obtained by the prosecutor before evidence of the commission of the offence first came to his attention might be admissible as circumstantial evidence in an eventual hearing. However, it does not follow that such evidence constituted evidence of the commission of the offence for the purposes of s 190(1)(b) at the time it first came to the prosecutor’s attention. The present case affords a useful example. In any defended hearing, the prosecutor might want to adduce evidence obtained during the surveillance period against the appellant. The purpose of the tender of such evidence might be to show that the egg collection found in his caravan was his egg collection and had not been left there by a third party. However, in circumstances where the prosecutor had no evidence that the appellant had harmed or possessed a single egg, I am not satisfied that time had started to run until the search warrant was executed on 10 November 2016.

…

72 If s 190(1)(b) does not have any practical operation for the possession offences with which the appellant was charged in the present case, this is a consequence of the circumstance that the offence of possession is, as referred to above, neither an offence of commission or omission, but rather an offence which requires proof of a certain state, namely, the exercise of control over a particular thing. Thus the commission of the offence was simultaneous with the time at which the prosecutor found the eggs in the appellant’s possession. This circumstance does not provide a warrant for either reading down s 190(1)(b) or including a gloss on the words.

99. Importantly, the Court stated that it was not necessary to demonstrate evidence that each of the elements of the offence came to the attention of the prosecutor before time commences to run (at [71], emphasis added):

71   I note for completeness that the primary judge appears to have interpreted what Robson J said in Younan as requiring that (in the context of s 127(5A) of the EPA Act), evidence of each of the elements of the offence come to the attention of the prosecutor before time starts to run. I do not consider this analysis to be correct. For example, the prosecutor would be obliged to establish beyond reasonable doubt that the appellant was the person in possession of the eggs in order to prove the charge. I note that Robson J held in Younan, that the prosecutor did not have to have evidence of the identity of the offender before time started to run under s 127(5A). The meaning of the expression “evidence of the alleged offence” in s 190(1)(b) is to be taken from s 190(4): namely, “evidence of an offence means evidence of any act or omission constituting the offence”.

100. In Chief Executive, Office of Environment and Heritage v Grant Wesley Turnbull (No 3) [2019] NSWLEC 165 Pain J held that diary notes relied upon by the defendant that related to different proceedings and clearing not the subject of the charge before her did not establish that the prosecutor became aware of the alleged unlawful clearing earlier than the date stipulated in the summons and the proceedings were therefore not statute barred for the purpose of s 42(3) and (4) of the NVA (at [55]). Likewise, the fact that the prosecutor had access to electronic data held by a remote sensing specialist did not prove actual knowledge of the clearing by the authorised officer at an earlier point in time (at [56]).

100. A survey of the above cases reveals the following propositions that assist in the proper interpretation of the phrase “evidence of the alleged offence” in s 216(2) of the POEOA:

1. first, the meaning of the expression is to be taken from s 216(6), that is, evidence of an offence means evidence of any act or omission constituting the offence. In other words, evidence of any act or omission constituting the alleged offence. No gloss on these words is required. Put another way, evidence of the alleged offence, on its face, means evidence capable of indicating that an offence has been committed (Younan and Somerville on appeal);

2. what is required by way of knowledge will depend on the offence charged and its elements. Thus, an offence involving possession requires proof of a certain state of affairs, namely, the exercise of control over a particular thing and the identity of the offender (Somerville on appeal), whereas an offence of carrying out development without consent where consent was required demands proof of knowledge of the development and the absence of any approval to carry it out (Younan);

3. having said this, evidence of all of the elements of the alleged offence is not required (Somerville on appeal). Thus in the example of an offence of carrying out development without consent, it is not necessary to know the identity of the person carrying out the unauthorised development (Younan);

4. mere speculation or belief, even if reasonable, will be insufficient to constitute the requisite degree of knowledge of the commission of the alleged offence (Rummery, Turnbull (No 3) and Somerville on appeal);

5. the phrase must be judged by reference to the contemporaneous knowledge of the prosecutor and not by hindsight (Somerville on appeal);

6. the fact that the prosecutor merely has access to information that would constitute evidence of the alleged offence will not be sufficient to establish the requisite knowledge (Rummery and Turnbull (No 3)).

102. Turning to the charges against the Bourtros defendants, in order to ascertain if there is any evidence of the acts or omissions constituting the offence prior to the date stipulated in the four charges, it is necessary to identify the elements comprising each offence.

103. The disposal of waste offence enacted by s 115 of the POEOA is in the following terms:

115   Disposal of waste—harm to environment

(1)   Offence If a person wilfully or negligently disposes of waste in a manner that harms or is likely to harm the environment—

(a)   the person, and

(b)   if the person is not the owner of the waste, the owner,

are each guilty of an offence.

…

(2)   Defence—lawful authority It is a defence in any proceedings against a person for an offence under this section if the person establishes that the waste was disposed of with lawful authority.

(3)   Definitions In this section—

dispose of waste includes to dump, abandon, deposit, discard, reject, discharge or emit anything that constitutes waste, and also includes to cause or permit the disposal of waste.

owner of waste includes, in relation to waste that has been disposed of, the person who was the owner of the waste immediately before it was disposed of.

104. Accordingly, the elements of the offence for present purposes may be summarised as:

1. a person;

2. who wilfully or negligently;

3. disposes (as defined);

4. waste;

5. in manner that harms or is likely to harm the environment;

6. without lawful authority to do so.

105. The word “waste” is widely defined in the Dictionary of the POEOA to include:

waste includes—

(a)   any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or

(b)   any discarded, rejected, unwanted, surplus or abandoned substance, or

(c)   any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or

(d)   any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or

(e)   any substance prescribed by the regulations to be waste.

A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered.

106. The term “harm to the environment” is also accorded a broad definition in the Dictionary:

harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.

107. In my view, applying the principles derived from the cases discussed above, it will be sufficient for the purpose of s 216(2) of the POEOA if any relevant officer had knowledge that a person disposed (as broadly defined) of waste on the property in a manner that harms or is likely to harm the environment. Absent further investigation, it will not be known if the requisite mental state is present and I do not consider that knowledge of this element is required to enliven the time limit under s 216(2) of the Act. This will be a matter for evidence at the trial.

108. Section 142A states that a person who pollutes land, which includes causing or permitting any land to be polluted, is guilty of an offence:

142A   Pollution of land

(1)   A person who pollutes land is guilty of an offence.

Maximum penalty—

(a)   in the case of a corporation—$2,000,000 (if the offence involves asbestos waste) or $1,000,000, and in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or

(b)   in the case of an individual—$500,000 (if the offence involves asbestos waste) or $250,000, and in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

109. The term “land pollution or pollution of land” is defined expansively in the Dictionary to the POEOA to mean:

land pollution or pollution of land means placing in or on, or otherwise introducing into or onto, the land (whether through an act or omission) any matter, whether solid, liquid or gaseous—

(a)   that causes or is likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial, or

(b)   that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter,

but does not include placing in or on, or otherwise introducing into or onto, land any substance excluded from this definition by the regulations.

110. Thus, the elements of the offence are that:

1. a person;

2. pollutes (as defined);

3. land.

111. The offence of unlawful transportation or deposition of waste to a place that cannot be used as a waste facility contained in s 143(1) of the POEOA is in these terms:

143   Unlawful transporting or depositing of waste

(1)   Offence If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported—

(a)   the person, and

(b)   if the person is not the owner of the waste—the owner of the waste, and

(c)   if the waste is transported in a vehicle and the person is not the owner of the vehicle—the owner of the vehicle,

are each guilty of an offence. …

112. An offence will therefore crystalise (subject to any defences being proved) if the prosecutor is able to demonstrate that:

1. a person;

2. transports or causes or permits the transportation;

3. of waste

4. to a place that cannot lawfully be used as a waste facility for that waste.

113. A “waste facility” means, according to the Dictionary, “any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulations)”.

114. Finally, section 144AAA relevantly provides as follows:

144AAA   Unlawful disposal of asbestos waste

(1)   A person disposing of asbestos waste off the site at which it is generated must do so at a place that can lawfully receive the waste.

…

(2) In this section, dispose of asbestos waste includes to dump, abandon, deposit, discard, reject, discharge or emit anything that constitutes asbestos waste, and also includes to cause or permit the disposal of asbestos waste.

115. The elements of the offence are therefore that:

1. a person;

2. disposes of (as defined);

3. asbestos waste;

4. off the site at which it is generated;

5. at a location other than at a place that can lawfully receive the waste.

116. What comprises “asbestos” and “asbestos waste” is set out in Sch 1 of the POEOA and is not necessary to reproduce here.

117. As is apparent, there are common elements to some of the charges, namely,

1. a person;

2. deposits or disposes;

3. waste;

4. on land without lawful authority to do so.

118. Additional elements include the movement of that waste to another place (ss 143 and 144AAA), whether harm to the environment is or is likely to be caused by the waste (ss 115 and 142A) and the presence of asbestos (s 144AAA).

The Evidence of the Acts or Omissions Constituting the Offences

119. As stated above, M&S relies exclusively on the 16 July 2021 letter from Marsdens Law Group on behalf of the Council to submit that the relevant authorising officer was Theys and that the alleged offences first came to his attention when he inspected the property on 12 September 2021, and that therefore, all of the proceedings have been commenced in time.

120. The Boutros defendants, by contrast, noted the equivocal language of the letter (“seem to confirm”) and, more importantly, relied upon the earlier internal email correspondence between Monte and Vo, both of whom were, according to the defendants, authorised officers for the purpose of s 216(2) of the POEOA, to contend that one or both of them were aware that fill material had been deposited on the site unlawfully as early as July 2017.

121. Separately, reliance was placed by them upon the Schildt report as evidence that the alleged offences came to the attention of relevant authorised officers by 4 September 2018.

122. In response, M&S argued that:

1. there was no evidence that the material referred to in the 2017 Monte and Vo correspondence was the same material inspected by Theys on 12 September 2018;

2. only a physical inspection of the dumping at the property, as undertaken by Theys on 12 September 2018, constituted relevant evidence for the purpose of s 216(2) of the Act (citing Turnbull (No 3), Environment Protection Authority v CSR Ltd (t/as CSR Woodpanels) (1998) 45 NSWLR 357 (“Woodpanels”) and CSR Ltd v Environment Protection Authority [2000] NSWCCA 373 (“CSR”) in support);

3. the 16 July 2021 letter from Marsdens Law Group was equivocal and was supported by the Council’s draft clean-up notice dated 23 October 2018; and

4. in respect of the offences charged under s 142A of the POEOA, these were continuing offences, and therefore, the time period in s 216(1) of the POEOA applies and no time limitation has been contravened because the fill remains on the property.

The Material the Subject of the Theys Inspection in 2018 is the Same Material Identified in 2017

123. An inference may be readily drawn from the evidence before the Court that the fill material imported to the property as at 2017 (which was also the subject of the Schildt report) is the same material that was located on the property that was inspected by Theys on 12 September 2018. Monte’s 2017 email refers to “Lot 25 Jardine Drive” and a comparison of Monte’s 2017 photograph of the material with those taken by Theys during his inspection demonstrates that it is relevantly identical.

Evidence of Acts or Omissions Constituting the Offences Coming to the Attention of Monte and Vo

124. The following information was before either Monte or Vo in 2017:

1. correspondence to Vo from Shane Harding, a surveyor, dated 19 October 2016, stating that the “topsoil” would be removed and that it was asbestos free;

2. an email from Monte dated 25 July 2017, concerning the application for a CC in respect of the development on the property that referred to the “illegal fill material” that had entered the creek and was assumed to be contaminated. He stated that he would refer the activity to the Council’s enforcement department for further action. A photograph of the alleged illegal works was attached to the email;

3. Domenic Carbone’s reply to the Monte email later that day acknowledging that soil had been placed on the property but that Vo was aware of the emplacement and that he had approved the activity. In addition to the validated fill, there had been soil illegally dumped on site by unknown persons;

4. Monte’s response on 2 August 2017, that Vo had earlier been falsely told that a CC application had been approved, and that therefore, no approval had been given for the emplacement of the fill. Monte reiterated that the fill would need to be removed;

5. Monte’s statement to Domenic Carbone on 3 August 2017, that the assessment of the CC could not progress unless the material was removed from the property;

6. Monte and Vo continued to have dealings with other persons at the Council in respect of the fill on the property during 2018 and 2019; and

7. Domenic Carbone’s letter to the Council dated 20 November 2018, stating that there had been email exchanges with the Council in 2017 indicating that the Council was aware that the soil was deposited at the property and that it was not contaminated.

125. In my view, this evidence clearly establishes, on the balance of probabilities, that there was fill material considered to be waste that had been disposed of in a manner that harmed, or was likely to have harmed, the environment insofar as it might be contaminated and that it had entered the creek (s 115), had been transported to (s143), deposited on (s 143), and had polluted (s 142A) the property, which had come to the attention of Monte, and possibly Vo, by at least 25 July 2017.

126. Given my finding that Monte and Vo were relevant authorised officers for the purpose of s 216(2) of the POEOA, this means that the offences charged under ss 115, 143, and 142A of the POEOA were commenced out of time. Evidence of each of these alleged offences came to the attention of the authorised officers earlier than three years after the date the proceedings were initiated. They are accordingly statute barred.

127. I do not accept that physical inspection of the property was the only means by which evidence of the alleged offence could be brought to the attention of any relevant authorised officer pursuant to s 216(2)(a) of the POEOA. There is nothing in either Turnbull (No 3), Woodpanels or CSR that supports this proposition.

128. In Turnbull (No 3) the defendant did not succeed in arguing that the charges were statute barred because the authorised officer’s diary notes were found not to relate to the offences the subject of those Class 5 proceedings (at [55]).

129. CSR concerned a stated case from Pearlman J’s decision in Woodpanels following a direction by the Court to the prosecutor to, among other things, provide particulars of the date or dates upon which an offence of negligently causing a substance to leak in a manner which harmed the environment occurred. The prosecutor could not do so and argued that it was relieved of the obligation to particularise the dates under s 12(3) of the Environmental Offences and Penalties Act 1989, the predecessor to s 216 of the POEOA. That provision provided that a summons “need not contain particulars of the date on which the offence was committed”. The Court of Criminal Appeal held that these words did not abrogate the common law right of a defendant to such particulars of a charge as are necessary to defend it and that Pearlman J did not err in ordering that particulars be furnished if they were known by the prosecutor. The case says nothing about the proof required to engage s 216(2)(a) of the POEOA.

130. For completeness, I do not find the Schildt report to be an alternative basis supporting the Boutros defendants’ submissions. Although dated 4 September 2018, because of the incorrect property address, it did not come to the attention of the Council until 11 September 2018, and there is no evidence as to when it first came to the attention of a “relevant authorised officer”.

131. Finally, the Boutros defendants made two further submissions which may be accepted. First, the fact that the Council determined not to initiate prosecutions in respect of the placement of the fill material on the property in 2017 is irrelevant for the purpose of deciding when the limitation period first accrued under s 216(2)(a) of the POEOA. Second, the response contained in the 16 July 2021 letter by Marsdens Law Group on behalf of the Council, while a material consideration, is displaced by the evidence referred to above establishing that evidence of the alleged offences came to the attention of relevant authorised officers prior to the Theys inspection.

Are the s 142A Offences Continuing Offences?

132. M&S further submitted that the s 142A pollute land offence was a continuing offence in the relevant summonses by reason of the inclusion of the words “from a day or days in the period 1 September 2016 to 17 November 2016, and continuing during the period until the pollution is attended to in accordance with Order 4 below”. Order 4 requires that the defendant undertake certain restorative and preventative measures to remove the waste from the property within 28 days of the making of the orders by the Court pursuant to s 245 of the POEOA. Because the offences are pleaded to be continuing offences, the limitation period in respect of the offences commences to run from the day upon which the commission of the offence ceases, namely, the removal of the waste, and accordingly, no question of the infringement of any limitation period arises (Turnbull (No 3) at [59] and Woodpanels at [35]). In this respect, M&S argued that it could rely upon the time limit in either s 216(1) or (2) of the POEOA, but that ultimately it did not matter because the waste pollution remained on the property, and therefore, the offences continued.

133. Section 242 of the POEOA deals with continuing offences:

242   Continuing offences

(1)   A person who is guilty of an offence because the person contravenes a requirement made by or under this Act or the regulations (whether the requirement is imposed by a notice or otherwise) to do or cease to do something (whether or not within a specified period or before a particular time)—

(a)   continues, until the requirement is complied with and despite the fact that any specified period has expired or time has passed, to be liable to comply with the requirement, and

(b)   is guilty of a continuing offence for each day the contravention continues.

(2)   This section does not apply to an offence if the relevant provision of this Act or the regulations does not provide for a penalty for a continuing offence. …

134. In Environment Protection Authority v Alkem Drums [2000] NSWCCA 416; (2000) 113 LGERA 130 Foster AJA applied Sloggett v Adams (1953) 70 WN (NSW) 206 and opined that (at [9] to [10], footnotes omitted):

9   Street CJ said (at page 208):

"The question whether the offence which has been committed is a continuing offence, or one which was committed once and for all at a specified time, depends upon consideration of the language of the Act in question. Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences. The test, it seems to me, is one which was prescribed in Ellis v Ellis, by Sir Francis Jeune, who said: "The test whether an offence is to be treated in law as continuous is, I think, whether its gravamen is to be found in something which the offender can, at will, discontinue." Applying that test to the section now under consideration, the legislature has made it clear that the offence is the failure to comply with the requirements of the notice. It is true that the notice deals with the eradication of noxious plants from the land, and one thing which must be done in order to comply with the notice is to eradicate. But the offence here was not a mere failure to eradicate generally, such as would be included under s. 472 of the Act; it was a failure to eradicate within the prescribed time, that is, within the twenty-eight days which expired on 2nd July, 1951. 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 2nd July, 1951, but, on the language of the Act, once 2nd July, 1951, had passed the offence was complete, and that offence could never be remedied in the future. If the appellant's argument were right, the defendant could be prosecuted at any time, years afterwards, for this offence, and a successor in title would also be liable to the same risk. I do not think that that was the intention of the legislature. Section 472 places the continuous burden upon occupiers of land. Section 473 places a specific burden upon a specific owner or occupier of land to comply with a specific notice which constitutes the offence. In my view, it was not a continuing offence. It was an offence which was committed, finally and conclusively, when 2nd July, 1951, arrived, and the proceedings not having been instituted until April, 1952, they were not competent and the magistrate was not entitled to adjudicate upon that information."

10   Owen J (at 208) said:

"Section 473 of the Local Government Act 1919-1951, imposes on the landholder the obligation to comply with the terms of a notice given to him under that section, and sub-s. (5) makes it an offence not to comply with it.

Where, as here, the notice sets a time for the doing of the act which is required to be done, the offence is, in my opinion, committed once and for all if that act is not done within the time set. Where the notice does not expressly specify a time, a reasonable time would be implied, and in such case the offence would be committed once and for all if, at the expiration of a reasonable time, the work had not been done. There can only be one breach of covenant to put premises in repair, as opposed to a covenant to keep them in that state: (see Larking v Great Western (Nepean) Gravel Ltd.), and I see no distinction in principle between such a case and the present one. Here the obligation to do the work is imposed by statute, and not by covenant, but that does not seem to me to be a relevant distinction. I would only add that if the present case is one of a continuing offence, then the offence is one which the landholder could never stop committing. Nothing he could do after the twenty-eight days had expired could ever be a compliance with the notice."

135. As ever, the question is one of the proper construction of s 142A of the POEOA (Alkem Drums at [9], Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 at 86 and CSR at [52]).

136. In Alkem Drums, the test for ascertaining whether an offence was a continuing offence was put as whether the offence once committed is complete and concluded and exists only in the past or whether the offence comprises a state of affairs that is forbidden that continues to exist (at [9]). Thus so-called ‘notice offences’, where an offender fails to comply with a notice stipulating that an act must be carried out by a specified time period, for example, the removal of waste, are generally not considered to be continuing offences because the offence is complete once the time period has expired (see, Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 at [134]-[136]). It cannot be remedied in the future. These offences may be contrasted with those that comprise a course of conduct or state of affairs (Bentley v Gordon; Bentley v BGP Properties Pty Ltd [2005] NSWCCA157; (2005) 139 LGERA 449 at [56] and Chief Executive, Office of Environment and Heritage v Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117; (2015) 209 LGERA 280 at [39]), such as the clearing of native vegetation.

137. In Bathurst, at issue was whether an offence of pollute waters under s 16 of the then Clean Waters Act 1970 had been commenced within 12 months after the date upon which the offence was alleged to have been committed pursuant to s 12 of the Environmental Offences and Penalties Act 1989. At first instance, Talbot J had held that there was no case to answer because of the absence of evidence as to when the polluting matter was placed in the water. On a stated case, the Court of Criminal Appeal rejected this reasoning, holding that an offence under s 16 of the Clean Waters Act was complete as soon as the pollution has occurred and was not a continuing offence because the conduct that resulted in it was not itself continuing.

138. As Hunt CJ at CL in Bathurst has appositely observed, “no-one has suggested a satisfactory definition of a continuing offence” (at 85). Nevertheless, his Honour gave the following examples of what did and did not constitute a continuing offence (at 85 and 86, footnotes omitted):

There are nevertheless many examples which may be given of offences which are or are not within such a category. Disobedience of a statutory obligation to do some act will usually be a continuing offence, such as a husband leaving his wife without support. Another example is provided by s 27A of the Clean Waters Act itself, where a person who does not, without reasonable excuse, comply with a notice to remove from waters the pollution which he has caused. Similarly, conduct which continues over a period of time in contravention of a statutory prohibition will usually be a continuing offence. Thus, if a person by his conduct continues over a period of time, and in contravention of s 16(I), to pollute waters by discharging matter into them which is likely to make the waters unclean, the offence would be a continuing one. Where the pollution is caused by (say) a fractured underwater oil pipe and the oil continues to discharge into the water because of the failure of the operator of the pipe to prevent that discharge, the offence would also appear to be a continuing one. But that is not what is suggested here. There is nothing in the case before this Court to suggest that the defendant so acted in a way which polluted the water on more than one occasion. All that continued were the consequences of that single act by the defendant.

The argument of the Environment Protection Authority was that the offence created by s 16(I) - being a result offence - continues so long as the consequences of that conduct on the one occasion continue. However, if it be correct to say that a result offence is a continuing one as long as the consequences of the defendant's single act of conduct continue, the result offence of murder would be a continuing one because the deceased continued to be dead as a consequence of the defendant's act causing it. Such an absurdity demonstrates the fallacy in the Environment Protection Authority's argument. The offence of murder is complete as soon as the victim dies. Similarly, the offence created by s 16(1) - when applied to a single act of the defendant - is complete as soon as the relevant consequence of the defendant's act has occurred. If the offence continued until there was no longer any change in the waters resulting from the placement of the manure in it by the defendant (as the Environment Protection Authority has argued), the limitation period would be almost limitless. An analogy is again available from the civil law. The tort of negligence may fairly be described as a "result" tort. It is complete as soon as damage is caused. The tort does not continue to be committed for as long as further damage ensues from the original act of the defendant. To a large extent, the particular category into which an offence falls is governed by the terms in which the offence is expressed. The distinction can be illustrated by two non-existent examples. If the offence were in terms such as "A person who obstructs a footpath is guilty of an offence", the offence would be a continuing one where the obstruction remains over a period of time. On the other hand, if the offence were in terms such as "A person who places material on the side of a roadway in such a manner that the footpath is obstructed is guilty of an offence", the offence would not be a continuing one notwithstanding the continued obstruction of the footpath over a period of time. The present case - based as it is on a single act of the defendant - is, in my view, clearly within the second category.

139. In my view, the reasoning in Bathurst applies by analogy to the s 142A pollute land offence as pleaded in the summonses. That is, once the matter is placed in or on, or otherwise introduced into or onto land, with the effect described in the definition of “land pollution” or “pollution of land” in the Dictionary to the POEOA, the offence is complete (Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263 at [49]-[51]).

140. That the harm caused by each act of pollution continues into the future does not transform the offence into a continuing offence. It does not, as M&S submitted, continue (that is, while the state of affairs, namely, the pollution of the land, persists) until such time as the Boutros defendants undertake restorative and preventative measures to remove the waste from the property. Put another way, the offence does not continue for the duration of the consequences of its initial commission. Such a conclusion would be inconsistent with the elements of the offence properly construed.

141. Merely because the summonses with respect to the s 142A offences are drafted stating that the offence continues until the pollution is remediated pursuant to a Court order does not transmogrify the offences into continuing offences in the manner suggested by M&S. The illogicality of this approach is demonstrated by the fact that the Court order may never be made in the exercise of its discretion. If the Court determined not to make an order under s 245 of the POEOA the logical corollary would be, according to M&S, that the offences would continue forever. This cannot be correct.

142. This is not to say that offences against s 142A can never be continuing offences. A substance that leaches over time and pollutes land can, depending on the particulars, give rise to a continuing offence while that substance is being deposited onto or into the land. This scenario is plainly envisaged by the provision of a daily penalty in s 142A of the POEOA (see s 242(2) of that Act, although this is not of itself determinative).

143. While detailed particulars of the s 142A offences have not been provided, it cannot be said that, having regard to the known facts at this nascent stage of the proceedings, the s 142A offences are continuing offences for the purpose of the s 216(2) time limitation. It appears that the offences arise from Domenic Carbone’s engagement of Chalita Boutros and Affordable Demolitions to deposited material on the property sometime in the period 1 September to 17 November 2016 (the inference is that this occurred once: see the evidence of Bilaver and Zipkis, including the exhibits to their affidavits, including the correspondence from Domenic Carbone dated 25 July 2017 and 20 November 2018), thereby polluting it. The offences were therefore complete when the soil was deposited at the property.

144. But even if I am wrong, and the s 142A offences are, at the very least from 1 September to 17 November 2017, continuing offences, this does not assist M&S in light of the finding made above regarding when evidence of the alleged offences first came to the attention of the relevant authorised officers Vo and Monte. As earlier concluded, the s 142A summonses were not commenced within time.

Section 144AAA Summonses Are Not Statute Barred

145. The one exception to the above analysis is in relation to the offences charged pursuant to s 144AAA of the POEOA.

146. I find that these summonses were commenced within time. As the evidence referred to above indicates, the presence of asbestos in the stockpiled fill was initially dismissed after sampling and testing. It was not until the Aargus report dated 30 August 2019, commissioned by M&S, was received, that asbestos in one of the five samples tested was detected. This was after the summonses for these offences were filed. Earlier evidence was to the effect that the soil was asbestos free.

147. The Boutros defendants submitted that it was not necessary for forensic evidence of the detection of asbestos to have come to the attention of authorised officers for the purpose of s 216(2)(a) of the POEOA, because the chapeau to that provision indicates that it is concerned with “an offence” which may be constituted by “any act or omission” (s 216(6)) and by 2017 there was sufficient evidence of an offence by reason of the presence of the stockpile on the property, the origin and contents of which was indeterminate.

148. I do not agree. While, as has been noted above, s 216(2) of the POEOA does not demand evidence of every element constituting the offence charged, the presence of asbestos is a central element of the offence created by s 144AAA of the Act. Just as in Younan it was necessary to have evidence of the absence of approval, in respect of s 144AAA it is, at the very least, necessary to have evidence of a person disposing asbestos somewhere other than at a place that can lawfully receive it.

149. In the present case, it was not until the Aargus report was received in August 2019 detecting asbestos in one of the samples that it had taken from the stockpiled fill that s 216(2) of the POEOA was engaged. Prior to that report, the information before the Council was to the effect that the material was asbestos free. The summonses in respect of this offence were therefore filed within time.

Except for the s 144AAA Summonses, the Summonses are Statute Barred

150. It follows that with the exception of the summonses in respect of the s 144AAA offences, the summonses for the remaining charges in respect of the Boutros defendants are time barred and must be dismissed.

Angela Carbone

151. M&S instituted proceedings for the following offences against Angela Carbone under the POEOA in five summonses:

1. “s 115(1)(a)(b)”;

2. s 142A(1)(b);

3. s 143(1)(b);

4. s 144(1)(b); and

5. s 144AAA(1)(b).

152. For the same reasons given above in respect of the Boutros defendants, with the exception of the offence against s 144AAA of the POEOA, the summonses have been commenced out of time and must be dismissed.

153. In addition, Angela Carbone submitted that, as drafted, each of the summonses filed is defective insofar as none of the provisions referred to in the summonses comprise offences known to law having regard to the wording of the offences contained in the POEOA.

154. There is substantial merit in this argument in light of the drafting of the summonses. However, given that all summonses except for the summons with respect to s 144AAA are to be dismissed, the issue need not be considered further. Having said this, in relation to the summons alleging a breach of “s 144AAA(1)(b)” contemplation should be given to seeking leave to amend the summons to properly plead the offence charged.

Domenic Carbone

155. The charges against Angela Carbone are repeated in relevantly identical fashion against Domenic Carbone.

156. The same result follows in respect of all charges. That is, with the exception of the summons alleging breach of s 144AAA of the POEOA, the summonses must be dismissed because they are statute barred.

Costs

157. Although costs were sought by each of the defendants given their success on the notices of motion, the issue was not the subject of submissions and is not without some complexity. The Criminal Procedure Act 1986 provides only limited circumstances in which an accused may be awarded professional costs.

158. Section 257C of that Act states as follows:

257C   When professional costs may be awarded to accused person

(1)   A court may at the end of proceedings under this Part order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.

(2)   The amount of professional costs is to be such professional costs as the court specifies or, if the order directs, as may be determined under section 257G.

(3)   Without limiting the operation of subsection (1), a court may order that the prosecutor in proceedings under this Part pay professional costs if—

(a)   the accused person is discharged as to the offence the subject of the proceedings, or

(b)   the matter is dismissed because the prosecutor fails to appear, or

(c)   the matter is withdrawn or the proceedings are for any reason invalid.

159. Given that the proceedings for all offences, except those charged under s 144AAA of the POEOA, have been dismissed, the defendants are arguably entitled to an award of costs in their favour in relation to the dismissed proceedings. However, as a matter of fairness, the parties should be afforded additional time to approach the Court to argue for a contrary costs order to that proposed.

Orders

160. Each of the three notices of motion filed by the Boutros defendants, Angela Carbone and Domenic Carbone sought different orders. The Boutros defendants sought that the proceedings the subject of their notice of motion be permanently stayed; Angela Carbone’s application sought a strike out of the relevant summons; whereas Domenic Carbone’s motion sought dismissal.

161. In my view, the appropriate order is to strike out the affected summonses on the ground that they are time barred and dismiss those proceedings.

162. The orders of the Court are therefore as follows:

1. summonses in matters 2021/261150; 2021/261151; 2021/261152; 2021/261154; 2021/261155; 2021/261156; 2021/261163; 2021/261164; 2021/261165; 2021/261166; 2021/261168; 2021/261169; 2021/261170; 2021/261171; 2021/261173; 2021/261174 and 2021/261175 are struck out and the proceedings are otherwise dismissed (“the dismissed proceedings”);

2. the notices of motion in matters 2021/261153, 2021/261157, 2021/261167, 2021/261172 and 2021/261176 are dismissed and costs are reserved;

3. M&S is to pay each of the defendants’ professional costs of the dismissed proceedings referred to in order (1) pursuant to s 257C of the Criminal Procedure Act 1996, as agreed or assessed under s 257G of that Act;

4. within 28 days the parties are granted leave to approach the Court to seek any variation of order (3) above; and

5. the exhibits are to be returned.

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Amendments

16 June 2023 - The legal representation for the Fourth Defendant has been corrected.

19 June 2023 - Typographical error corrected throughout the judgment.

06 July 2023 - Amendment to Order 3 at [162] of judgment handed down on 16 June 2023.

Decision last updated: 06 July 2023